Legal

Cookies’ Fortune

By David Chin - Solicitor, Jones Staff & Co

The breakaway union led by a man personally backed by the Prime Minister has been refused registration in a ruling that raises questions over the whole enterprise.

"Appalling, spiteful and vindictive", "damaging and ... not in the pursuit of legitimate industrial disputes" and "inimical to cooperative workplace relations" - these are comments adopted by a senior judge of the Australian Industrial Relations Commission regarding the conduct of the Postal Delivery Officers Union (PDOU) and some of its officers in a recent judgment dismissing an application by the PDOU for registration as an enterprise association under the Workplace Relations Act (per Vice President McIntyre, 18 February 2000, Print S3192).

The PDOU's application was filed by its registered officer, Mr Quentin Cook, who in 1994 unsuccessfully stood for election to the office of National Secretary of the Communication Workers Union (as it was then called) on a Liberal party-endorsed ticket. In fact, Mr Cook ran on a ticket which was personally endorsed by the current Prime Minister, John Howard, in his role then as Shadow Minister for Industrial Relations.

The failure of the PDOU's application follows on the heels of other unsuccessful registration applications by "enterprise unions" under provisions introduced by the Howard government as part of its industrial reforms in 1996. These provisions were designed to encouraging a proliferation of enterprise based unions which, it was thought by some, would compete with and undermine the representative base of the established trade unions in Australia.

The deficiency of the majority of applicants that have come before the Commission to date (though few in number) has prompted the Minister for Employment, Workplace Relations and Small Business, Peter Reith, to offer a prop in the form of new legislation which would lower the standards required to be met by these organisations in order to be registered.

Under the current legislation (section 189(4) of the Workplace Relations Act), an enterprise union wanting to be registered must first satisfy the Commission that, among other things:

· It is a genuine association for furthering or protecting the interests of its members;

· It is free from control by, or improper influence from any employer, other unions, or any person or body with an interest in the relevant enterprise;

· It has at least 50 members;

· A majority of persons eligible to be members of the association support its registration;

· It would conduct its affairs in a way that meets the obligations of an organisation under the Act; and

· Its registration would further the objects of the Act (the principal object being to provide a framework for "cooperative workplace relations").

The PDOU lodged an application on 3 February 1998 for registration as an enterprise association representing postal delivery officers in the "Penrith Area Delivery Network" of Australia Post.

This application was objected to by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) as well as several individual employees of Australia Post working in the Penrith Area Network.

Counsel for the PDOU, Mr Peter King - a former President of the state Liberal party and occasional candidate for Liberal party pre-selection for election to federal Parliament - drew on the traditional ideals of the trade union movement in support of the PDOU's application. Mr King submitted, bizarrely, that registration of the PDOU would be consistent with the spirit of Labor icon Ben Chifley's "light on the hill".

After a lengthy two-week hearing, Vice President McIntyre found initially that the PDOU was not validly formed and was therefore a nullity.

Having examined the conduct of the PDOU and the quality of its evidence, his Honour made alternative findings that registration of the PDOU would not further the objects of the Act. His Honour also could not be satisfied that the PDOU would conduct its affairs in a way that meets the obligations of an organisation under the Act; nor was he satisfied that a majority of persons eligible to join the PDOU supported its registration.

In forming these views his Honour commented that a petition and other evidence on which the PDOU sought to rely to establish majority support as required under the Act was "all too vague".

McIntyre VP was particularly damning about certain personal attacks made by the PDOU, and by Mr Cook in particular, on some of the individual objectors. His Honour stated that:

"I agree with the objectors' submission that the attacks on Messrs Driscoll and Bowen are "appalling", "spiteful" and "vindictive". Such attacks on fellow employees in the [Penrith Area Delivery Network] lead me to the view that the registration of the PDOU would not further the principal object of the Act ("cooperative workplace relations").

His Honour also found that Mr Cook was engaged in an attempt to intimidate one of the individual objectors in terms of pursuing his objection to the PDOU's application.

Other enterprise unions have similarly floundered in their efforts to comply with the registration criteria currently set out in the Act. For example, Vice President McIntyre dismissed an application by the SMQ Enterprise Union (27 October 1999, Print S0298) which had its origins as a management driven staff association of the banking and insurance organisation, now known as Suncorp Metway. His honour found that the SMQ Enterprise Union was not free from control, or improper influence from the employer or persons with an interest in the enterprise because its members, including members of its management committee, held shares in Suncorp Metway.

His honour also was not satisfied that the SMQ union had majority support for registration because the applicant relied upon expressions of support obtained over a period of ten months and was out of date by the time of the hearing.

An application by the ICI Botany Employees' Association for registration broke down as a result of the Commission's refusal to alter some of its rules prior to hearing the application (McIntyre VP, 10 July 1998, Print Q3364). Although not finally determined as such (the application was not proceeded with), the Australian Workers Union and some individual employees objected on grounds which included the lack of majority support for registration.

Mr Reith has responded to these failures by seeking to lower the bar for enterprise association applicants. In an October 1999 Ministerial Discussion Paper entitled "Accountability and democratic control of registered industrial organisations" there is a stated intention by the Government to "simplify the registration process and make other changes to facilitate registration" having regard to what the Minister sees as a number of difficulties in obtaining registration experienced by applicants "as a result of the technical nature of the registration process."

The result is the Registered Organisations Bill 2000 ("the 2000 Bill") released in exposure draft form on 17 December 1999. The relevant part of this Bill would have the effect of substantially diluting the standards required to be met in the following manner:

· Applicants would only have to have 20 members instead of the current requirement of 50;

· The enterprise association would not need to show that it would conduct its affairs in a way that meets the obligations of an organisation under the Act. In addition, the applicant association would not have to show that its registration would further the objects of the Act. It would merely have to show that it could "operate effectively" as an organisation within the framework established by the Act; and

· The requirement to establish that a majority of members eligible to join the association support its registration is dropped.

In addition, there is a provision specifically designed to circumvent the Suncorp Metway decision by stating that a shareholding in the relevant enterprise does not of itself give the shareholder "the capacity to control or improperly influence" the association.

The government is attempting to achieve by legislation what has proved difficult to attain for some applicants under the scrutiny of contested proceedings in the Commission. As demonstrated vividly in the PDOU case, the current safeguards have operated effectively by excluding a patently undesirable entrant to the industrial system. Contrary to Mr Reith's assertion, these safeguards cannot be dismissed as mere "technicalities of the registration process". The current statutory registration criteria have been sensibly applied by the Commission to protect the integrity of the system from infiltration by unfit participants. The 2000 Bill would strip away those safeguards.

It should be of great concern to the industrial community and to the public generally that the government is proposing legislation that may have the effect of allowing rogue organisations like the PDOU to enjoy all the privileges of registration under the federal system.

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  Issue 43 contents

»	Did Taxpayers Fund PM’s Rogue Union?
»	Woodlawn: Two Years Is Long Enough
»	Bus Drivers Strike Olympic Bonus
»	Office Email Access for All
»	Test Case for Bank After Hold-Up
»	Mad Monk Misses the Mark
»	Crosby to Unions: Don't Lose Your Nerve
»	The Bald Truth - Unions Hit the Campuses
»	Moait Takes Reins as President
»	Mardi Gras to Pay Tribute to Jennie
»	Pay Equity Cyber Picket on Premier
»	Log-In Every Day on LaborNet!

»	The Soapbox
»	The Locker Room
»	Trades Hall
»	Tool Shed

»	Desperately Seeking Lithgow Ladies
»	Just a Suggestion!
»	Where is the Nexus?

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