WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Nos. A19 and A21 of 1985. Between the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch, Applicant and A19/85 the Water Authority of Western Australia; A21/85 the Public Service Board, Respondents. Before Mr Commissioner G.L. Fielding. The 8th day of November 1985. Mr A.R. Beech on behalf of the Applicant. Mr J. J. Radisich on behalf of the Water Authority of Western Australia. Mr R.B. Farrelly on behalf of the Public Service Board. Mr M.J. Bowler as intervener on behalf of the Civil Service Association of Western Australia (Inc). Reasons for Decision. THE COMMISSIONER: As part of its operations the Water Authority of Western Australia maintains a service centre at its principal offices in Perth. The major function of that centre is to receive reports from the Authority's customers of service problems concerning the supply of water. The centre functions 24 hours a day, 2254 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 65 W.A.I.G. seven days a week. Outside the normal day-time hours it is manned by a general assistant and an engineering assistant who are salaried personnel employed by the Public Service Board under the provisions of the Public Service Act 1978 as public servants. Their function in short, is to record the nature of the problem, as and when necessary relay messages relating thereto to the field service team, and to record the action taken by the service team to remedy the reported problem. In addition, the engineering assistant is required to monitor the activities of the operations centre, and to supervise the work of general assistants in the service centre. The centre in its present form was established in or about June 1984 following a departmental review which recommended that the activities of the existing centre be enlarged and staffed with personnel with a basic engineering background. Previously the centre had been manned after normal day-time hours by "night officers" employed under the terms of the Government Water Supply Sewerage and Drainage Employees Award 1981. Typically those personnel had a background of service as maintenance layers. The change came about as the result of an attempt by the Metropolitan Water Authority to provide a more effective and efficient service to its customers. In essence the Authority saw the centre as changing from a complaints centre to a service centre. The Applicant now seeks an award to cover the salaried personnel employed at the centre. The terms of the Award are yet to be settled but the claim is to have an award based on conditions applying to the Public Service at large. The principal basis of the Applicant's claim was that the work in question was not significantly different from that which was formerly done by night officers for whom it alone had the industrial coverage. The Appli- cant therefore prayed in aid the provisions of section 80C (4) of the Industrial Relations Act 1979, which provide as follows:— Where any industrial matter in relation to a Government officer or group of Government officers is being dealt with under this Act, and the question arises between two or more organisations as to which of them or whether or not one of them, should be named as a party to an award or order or should become a party to an industrial agreement, regard shall be had, when that question is being determined, to the past coverage of such Govern- ment officers by organisations under awards, orders and industrial agreements and under unregistered industrial agreements that the Commission considers to be relevant. The Civil Service Association sought leave to intervene to object to the application. In essence its contention was that the Applicant did not have constitutional coverage for the employees in question and hence had no standing to make application for the Award. Furthermore, the Association claimed that the Public Service classifica- tions of engineering assistant and general assistant were already the subject of Industrial coverage in the form of the Public Service General Division Salaries Agreement 1982 made between the Association and the Public Service Board. It argued that the public servants occupying the Public Service classifications at the service centre should not be treated differently from those occupying the same classifications elsewhere in the Service. Moreover, it saw itself as being entitled to the industrial coverage for the work now in issue to the exclusion of the Applicant because of section 80C (4) of the Act. Both the Public Service Board and the Water Authority of Western Australia adopted a neutral attitude to the question of which of the competing unions should have industrial coverage of the work in issue. However, the Public Service Board was of the view that the positions of general assistant and engineering assistant at the centre were significantly different from the former position of the night officer. By reason of section 29 (a) of the Industrial Relations Act 1979 it is essential for the Applicant to succeed in its claim that it have constitutional coverage for the employees in question. The Applicant's eligibility for membership rule, rule 4, provides so far as is relevant as follows:— (2) In addition to the foregoing, the Union shall consist of an unlimited number of persons who are employed, or who are usually employed by the Western Australian Government in the Department of Water Supply, Sewerage and Drainage and the Metropolitan Water Supply, Sewerage and Drainage Board. At the time that rule was registered in the Commission section 23 (3) (b) of the Industrial Arbitration Act 1979, which section has since been repealed, prohibited the Commission from regulating the rates of salary or wages or the conditions of employment of "Government officers" who amongst others included persons ' 'employed as an Officer under and within the meaning of the Public Service Act 1978" [see: section 96 Industrial Arbitration Act 1979, (now repealed)]. Those matters were the exclusive provence of the Public Service Arbitrator established under the Public Service Arbitration Act 1966, before whom the Civil Service Association had exclusive right of audience as a union of employees. Those provisions no longer exist. The Public Service Arbitrator is now a constituent authority within the Industrial Relations Commission. In general terms the Arbitrator by virtue of section 80E of the Industrial Relations Act 1979, retains exclusive jurisdiction to inquire into and deal with any industrial matter relating to Government officers, but the Civil Service Association no longer has the sole right of audience to represent officers before the Arbitrator. That is principally because the concept of Government officer has been significantly broadened [see: section 80C (1) Industrial Relations Act 1979], The Association's argument on this occasion is that the Applicant's eligibility rules should be read down so as not to include employees of the Water Authority of Western Australia who are Government officers. It argues that the recent changes to the Industrial Arbitration Act 1979 should not be interpreted as enlarging the Applicant's eligiblity rules since it alleges, that was not the legislature's intention. The Applicant on the other hand suggests that the rule should be taken at face value, and the Commission ought not ignore the obvious consequences resulting from changes in the legislation. In my opinion the changes to the Industrial Arbitra- tion Act 1979 as embodied within the Industrial Relations Act 1979 have not altered the scope of the Applicant's eligibility rule. What the legislative changes have done is to alter the Applicant's ability to seek industrial coverage for those employed in the Govern- ment Departments mentioned in its eligibility rule. The Applicant's eligibility rule is clear and unambiguous. It covers "an unlimited number of persons" who are employed by the Government in the Departments mentioned. In this respect as in all others its meaning is the same now as it was in 1982. There is no scope to interpret the rule as excluding Government officers or including only wages employees of the Government. Although the Applicant has hitherto had no right of audience before the Public Service Arbitrator and hence was unable to obtain industrial coverage for those Government employees mentioned in its eligibility rule who fitted the description of Government officer it does not follow that the rule should be regarded as being limited only to those whom it could represent industrial- ly. To adopt that approach is to confuse industrial coverage with constitutional coverage. The right to enrol members and the right to obtain industrial coverage for those members are quite separate and distinct. That is illustrated in Australian Workers' Union Western Australian Branch Industrial Union of Workers re\ Reference of Question of Law (1982) 63 WAIG 16 and 65 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 2255 the proceedings which followed in Australian Workers' Union Western Australian Branch Industrial Union of Workers and Amalgamated Metal Workers' and Ship- wrights' Union of Western Australia (1983) 64 WAIG 420. It is simply not valid to argue as did Mr Bowler, on behalf of the Association, that as the Industrial Arbitration Act 1979 excluded from the Commission's jurisdiction the power to regulate the conditions of employment of Government officers it had no power to register the Applicant's rules in a form which gave it the right to enrol Government officers. The provisions of section 23 (3) (b) as they were in the Industrial Arbitration Act 1979 are quite specific in what matters are excluded from the Commission's jurisdiction and nothing is therein contained which limits the jurisdiction to register organisations covering Government officers in the way the Association suggested. Moreover, the powers vested in the Commission to register organisa- tions of employees under which incidently, the Civil Service Association is registered, do not and did not at any material time contain a provision which so restricted the jurisdiction of the Commission. I do not therefore accept the proposition that the Association has and has always had exclusive constitutional coverage for Govern- ment officers. That may well have been the practical consequence of the provisions section 23 (3) (b) of the Industrial Arbitration Act 1979 and of the Public Service Arbitration Act 1966 but that is as far as it goes. The Association found some solace for its view of the Applicant's eligibility rule in the recent decision of the Full Bench in re-. The Civil Service Association Application to amend Rules (Application No. 442 of 1985), more particularly in the views of the Acting President that the Association "has demonstrated that it is entitled to amend its constitution rule to enable it to retain constitutional coverage which it necessarily enjoyed as a consequence of its exclusive rights before the then Public Service Arbitrator". That case dealt with an application by the Association to amend its constitu- tion rule to take account of the recent statutory changes which enlarged the jurisdiction of the Public Service Arbitrator. However, I would have thought that the case highlights the difference between constitutional and industrial coverage. Indeed, the Acting President in noting that the Association was first registered as an organisation of employees under the Industrial Arbitration Act 1912 in 1967 mentioned that "the pro- tection it enjoyed from competition by other organisa- tions of employees lay in its monopoly of audience and standing before the then Public Service Arbitrator". In my view the registration of the Association as an organisation under the provisions of the Industrial Arbitration Act 1912 and its successor the Industrial Arbitration Act 1979 as amended did not of itself give the Association any special status in respect of Government officers other than that indicated in its membership rule. What privileges it did have in respect of Government officers in the main resulted from its exclusive right of audience before the Public Service Arbitrator coupled with the Arbitrator's exclusive jurisdiction to entertain claims in respect of such officers. That privilege having been removed the Association is now open to the compe- tition, from which it was once protected as these pro- ceedings well illustrate, although I suspect that the pro- visions of section 80C (4) of the Industrial Relations Act 1979, still afford it some measure of protection. The Association also argued that the Applicant's eligibility rule was limited specifically to employees of the Metropolitan Water Supply Sewerage and Drainage Board as stipulated in its rules. However, in light of the provisions of section 5 of the Metropolitan Water Authority Act 1982 and section 8 (8) of the Water Authority Act 1984 that proposition is untenable. Those statutory provisions have effectively substituted the Water Authority of Western Australia for the Metro- politan Water Supply Sewerage and Drainage Board [c.f. too: Re Australian Postal and Telecommunications Union, NSW Branch (1975) 25 FLR 90]. In recently amending the membership rule of Civil Service Association, the Full Bench {supra) at the instance of the Association and in order to accommodate objections one of which eminated from the Applicant inserted the following proviso to its constitution rule:— Provided that the following persons shall not be eligible for membership: persons who are employed by an employer bound by an award made or an industrial agreement registered under the Industrial Relations Act 1979 and in force on 1 March 1985 and to which an organisation of employees registered under the aforementioned Act other than the Civil Service Association of Western Australia Incorporated is a party in the calling which on 1 March 1985 were mentioned in any such award or agreement or a classification not specifically mentioned in the award or agreement as at 1 March 1985 the duties of which are the same or substantial- ly similar to any classification which was so mentioned. On the basis of that provision the Applicant contended that the Association was without the constitutional authority to enrol the personnel for whom the award is sought, let alone to intervene in these proceedings. The Applicant's argument as already mentioned, was that the duties of the general assistant and the engineering assistant are "substantially similar" to if not the same as those of the night officers. However, I do not accept that. The assessement what is a "substantially similar" classification is a matter of degree and largely a question of fact to be determined in each case. While it is unquestionably a fact that many of duties once perform- ed by night officers are now performed by general assistants and engineering assistants it is too simplistic in my view to conclude that the duties are substantially the same. In my view the new job functions are significantly more sophisticated than those of the night officers. My impression is that the night officers acted mainly as a conduit for transmitting messages from customers to the maintenance gangs with incidental recording functions whereas much more is expected of the new classifica- tions. My further impression was that the changed circumstances were most accurately revealed by Mr Engler an assistant control engineer with the Water Authority of Western Australia. He testified that while some of the tasks apparently required of general assistants and engineering assistants are the same as those formally required of night officers the Authority now expected those in the new classifications to do a lot more with the information they received than was previously the case. One consequence of the changed, job require- ments is that the assistants are gainfully occupied throughout the whole of their shift, whereas previously provision was made for night officers to sleep at the work place during hours of duty when the level of enquiries was not expected to be high. Those in the new classifications are required amongst other things to compile more sophisticated records which require more clerical skills than before. Moreover, the officers are now expected to adopt an analytical approach to the information received by them and to make assessments of a basic technical nature which they were previously not expected to do. Consistent with that requirement the engineering assistants at least, are required as a condition of appointment to have obtained "progress towards a Diploma in Engineering or approved equivalent with the minimum of four years' experience in an area related to water and or sewerage operations" with preference being given to applicants "specialising in Civil Engineering and possessing good skills in written and verbal communications". Mr Engler testified that a number of the instructions that have been given to the assistants in the service centre are now more complicated than before and are not of the type which would have been issued to night officers. In addition, particularly in the case of the engineering assistants, some of the tasks now performed, for example those associated with monitoring the nearby control centre, 2256 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. were in the past done by a control engineer. Much of what Mr Engler said was corroborated by Mr Clarkson, the Authority's water supply manager, and I consider their evidence the most reliable. I have not overlooked the testimony of Mr Saxby, a former night officer, who is now acting in the position of general assistant and engineering assistant. His view was the tasks now required of him were substantially the same. However, I was left with the impression that his assessment was somewhat superficial and I am not confident that his assessment of the job requirements is as accurate as that of Messrs Engler and Clarkson. It is not without significance that he is undergoing technical training of the kind thought by the Authority to be a basic require- ment for one to be able to adequately perform the tasks now required by it in the service centre. Thus I am not convinced that either of the new classifications falls within the proviso to the membership rule of Civil Service Association. Hence I am not con- vinced that the personnel in issue are excluded from the Association's constitutional coverage which otherwise clearly embraces the classifications in question. In my view the matter is to be approached as if both the Applicant and the Association have constitutional coverage for those employed in the classifications by the Board at the Water Authority service centre. It remains to consider whether an award should issue in favour of the Applicant. I think not. Having regard to the command given the Commission in section 80C (4) it has to be acknowledged that the Civil Service Associa- tion has traditionally had industrial coverage for Government officers who fit the classification of general assistant and engineering assistant. The Applicant on the other hand can claim only a history of industrial coverage for those in the position of night officer which as I find, did not involve substantially the same duties as for the classifications in question and furthermore its industrial coverage related to those persons as wages employees rather than as Government officers. Moreover, the classifications of general assistant and engineering assistant are not peculiar to the Water Authority of Western Australia still less to its service centre. Those classifications are also to be found for example in the Building Management Authority. It would be odd indeed and I consider industrially unsound, if some general assistants and engineering assistants in the Water Authority of Western Australia were required to work under one award and others under another award. There already exist awards of this Commission to which in each case the Civil Service Association is a party, covering the classifications now in question and to make yet another award seems to me to be an exercise in futility. This is all the more so if as proposed, the new award in the main mirrors the conditions of employment contained in the existing awards. The Applicant cannot even claim that the majority of those who now act in the new classifications were formerly night officers. Only two former night officers have graduated to the new classifications and the indications are that those with simply a background of service in the maintenance area are unlikely to be appointed to the classifications in question. It is now well established that the Commission should wherever possible avoid having a multiplicity of unions as party to the same award [c.f. in re Wire Manufacturing (Western Wire Industry Ltd) Award 24 of 1970 (1979) 59 WAIG 696; and see too Federated Clerks Union of Australia Western Australian Branch v. Hendry Rae & Court (1975) 55 WAIG 808]. I see no reason why the same consideration should not apply in this case where a multiplicity of unions to the one award is being avoided only because a new award in similar terms is being sought albeit for a separate area within the Public Service. Furthermore, I think it has to be accepted that the Public Service is built on a classification structure directed towards a career service based on transfers and promotions. While technically there is no reason why that scheme cannot continue to operate under a multi- plicity of awards, it is obviously a matter best dealt with under a common award. For the reasons outlined that is most suitably the existing awards which currently set the rates of pay and conditions for all general assistants and engineering assistants amongst others throughout the Public Service. Thus, despite the valiant efforts of Mr Beech on behalf of the Applicant I think both the claims should be dis- missed. The claim directed to the Public Service Board should be dismissed for the reasons outlined above. The claim directed to the Water Authority of Western Australia should be dismissed because the Authority does not employ anybody in the classifications proposed to be covered by the new award. BEFORE THE