WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE MERCHANT SERVICE GUILD OF AUSTRALIA, WESTERN AUSTRALIAN BRANCH, UNION OF WORKERS

APPLICANT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  COMMISSIONER P E SCOTT

  COMMISSIONER S J KENNER

DELIVERED THURSDAY, 15 FEBRUARY 2001  

FILE NO/S FBM 3 OF 2000

CITATION NO. 2001 WAIRC 02020

_______________________________________________________________________________

Result  Application dismissed.

Representation

Applicant   Mr A D Gill (of Counsel), by leave

Participants pursuant Mr J C Pritchard (of Counsel), by leave, on behalf of

to s.72A(5) of the Act  The Executive Director, Fisheries Western Australia

    Mr P L Harris (of Counsel), by leave, on behalf of

    The Civil Service Association of Western Australia Incorporated

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

1                 These are the unanimous reasons for decision of the Full Bench.

2                 This is an application by the abovenamed Merchant Service Guild of Australia, Western Australian Branch, Union of Workers (hereinafter referred to as “the MSG”) for orders pursuant to s.72A of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).

3                 The application was filed on 22 June 2000.  The schedule to the application, which contains the grounds of the application and the orders sought, reads as follows:-

Orders Sought

  “1. That the MSG has the right to represent under the Act, to the exclusion of the Civil Service Association of Western Australia Incorporated (“CSA”), the industrial interests of all Fisheries Officers employed in the Fisheries Department of Western Australia by the Executive Director Fisheries who are eligible for membership of the MSG.

  2. To the extent that the MSG does not have the right under the Act to represent the industrial interests of Fisheries Officers employed in the Fisheries Department of Western Australia by the Executive Director Fisheries, the MSG shall have that right.

  3. That the CSA does not have the right under the Act to represent the industrial interests of any Fisheries Officers employed in the Fisheries Department of Western Australia by the Executive Director Fisheries who are eligible for membership of the CSA.”

 Grounds

   “1. The orders sought are ones to which it is open to the Full Bench to make under s. 72A of the Act.

   2.  The applicant is best placed to represent the industrial interests of the Fisheries Officers because:

  a) In the context of the enterprise, the applicant is the recognised principle union in relation to maritime employees and can commit greater resources and overall industry experience to protect the industrial interests of those employees engaged in the maritime industry;

  b) The applicant will be better placed to promote and facilitate successful enterprise bargaining in relation to Fisheries Officers within the Fisheries Department of Western Australia.

   3. The orders sought will best facilitate the industrial representation of the employees.

   4. The vast majority of Fisheries Officers employed by the Executive Director Fisheries would prefer to have their industrial interests represented by the applicant and not the CSA.

   5. The Fisheries Officers have a predominant marine-related employment function and community of interest with the MSG.

   6. There exists a preponderance of employee membership with the MSG, historically.  The vast majority of Fisheries Officers resigned from the CSA en masse in protest at the inadequacy of representation.

   7. The orders sought are consistent with the objectives of the Western Australian Industrial Relations Commission’s wage fixing principles.

  8. The orders sought are consistent with the objects of the Act.”

4                 On 5 September 2000, the Full Bench declared that The Executive Director, Fisheries Western Australia (hereinafter referred to as “Fisheries WA”) and The Civil Service Association of Western Australia Incorporated (hereinafter referred to as “the CSA”) had sufficient interest to be heard pursuant to s.72A(5) of the Act and leave was given for that organisation to be heard.

5                 For convenience, we reproduce hereunder the grounds advanced on which both Fisheries WA and the CSA, respectively, should be given the right to be heard, because these are convenient summaries of their interest in the matter:-

Fisheries WA

  “The Executive Director, Fisheries Western Australia (“the Executive Director”), has a sufficient interest in the Application for the purposes of s72A(5) of the Industrial Relations Act 1979 such as to warrant an opportunity to be heard in relation to the Application, on the grounds that:

  1. The Executive Director is the employer, under the Public Sector Management Act 1994, of the persons described as “Fisheries Officers” in the Application;

  2. Fisheries Western Australia is the Western Australian government department which principally assists the Minister in the administration of the Fish Resources Management Act 1994, including ensuring compliance with the provisions of that Act;

  3. The Executive Director employs persons described in the Application as “Fisheries Officers” to perform functions relating, among other things, to compliance with the provisions of the Fish Resources Management Act 1994;

  4. The Executive Director is a party to each of the industrial instruments (awards, industrial agreement and workplace agreement) which govern the terms and conditions of employment of some or all of the persons described as “Fisheries Officers” in the Application, namely the Public Service Award 1992, the Public Service Allowances (Fisheries and Wildlife Officers) Award 1990, the Fisheries W.A. Enterprise Bargaining Agreement 1999 and the Fisheries W.A. Individual Workplace Agreement 1998;

  5. The only industrial organization with which the Executive Director currently deals in resolving issues relating to the terms and conditions of employment of its employees in clerical, compliance, research, technical, policy and community education areas is the Civil Service Association of Western Australia (Inc);

  6. In these circumstances, the orders sought in the Application would, if made by the Full Bench, directly affect the rights and interests of the Executive Director.”

 CSA

  “1. The officers to which the application of the Merchant Service Guild of Australia, Western Australian Branch, Union of Workers relates (namely all Fisheries Officers employed in the Fisheries Department of Western Australia by the Executive Director Fisheries) are currently exclusively under the coverage of the Civil Service Association of Western Australia Incorporated.

    2. The application of the Merchant Service Guild of Australia, Western Australian Branch, Union of Workers seeks to exclude the Civil Service Assocation(sic) of Western Australia Incorporated Incorporated(sic) from representing all Fisheries Officers employed in the Fisheries Department of Western Australian by the Executive Director Fisheries.

    3. The Civil Service Association of Western Australia Incorporated is the only named union party to the Public Service Award 1992 and the Public Service Allowances (Fisheries & Wildlife Officers) Award 1990, the only two awards that cover the employees to whom the application relates.

  4. The Civil Service Association of Western Australia Incorporated is a named party to the Fisheries WA Enterprise Bargaining Agreement 1999 (No.  PSGAG 1 of 1999), the Enterprise Bargaining Agreement that cover the employees to whom the application relates.”

6                 We are satisfied that the MSG is an organisation, as that is defined in s.7 of the Act and duly registered under the Act as an organisation of employees.

7                 The MSG has no counterpart federal organisation, as that is prescribed in s.71 of the Act.  However, there was reference in these proceedings to a federally registered organisation with which the MSG is and was connected or affiliated, called the Australian Maritime Officers Union (hereinafter referred to as “the AMOU”), an organisation registered in accordance with the Workplace Relations Act 1996 (Cth).

8                 We are satisfied that the CSA also is and was, at the material times, an organisation of employees, as that is defined in s.7 of the Act and that the Community and Public Sector Union, WA Branch (hereinafter referred to as “the CPSU”) is its counterpart Federal body by virtue of an declaration of this Commission made under s.71 of the Act on 4 November 1993 (73 WAIG 2932).

9                 The Executive Director of Fisheries WA is and was, at the material times, a person described as an employer of Fisheries officers.  Fisheries WA, it is common ground, is a department of Government of this State.  For the purposes of this application and since it was not otherwise agreed, we accept that a Chief Executive Officer under the Public Sector Management Act 1994 (as amended) (hereinafter referred to as “the PSM Act”) is an employer.  However, the question whether such an officer is an employer remains an open one for us.

10              The CSA, it was not in dispute, has constitutional coverage pursuant to its rules, of Fisheries officers employed in or by Fisheries WA.  The question arose in these proceedings as to whether the MSG has constitutional coverage of Fisheries officers employed in Fisheries WA.  (Coverage of those officers is the subject of this application.)

S.72A REQUIREMENTS

11              The orders which were sought were orders which it is within the jurisdiction of the Commission, constituted by the Full Bench, to make pursuant to s.72A of the Act.  It is not necessary to reproduce that section in full here for a proper understanding of it (the section has now been considered by the Full Bench in a number of cases including Re an application by CMETSWU 78 WAIG 1585 (FB); Re an application by AWU and Another 79 WAIG 3012 (FB); Re applications by HSOA and CSA 76 WAIG 1673 (FB); and Re an application by the AFMEPKIU 80 WAIG 4613 (FB)).

12              We are satisfied that this application relates to a particular class or group of employees employed in an “enterprise”, as that word is defined in s.72A(1) of the Act, who are eligible for membership of the CSA.  It is quite clear on the evidence to which we will refer later in these reasons, and we so find, that the enterprise, the subject of this application, consists of the activities carried on by a public authority, namely a State Government Department (called “Fisheries WA”), as defined in s.7 of the Act.

13              We are satisfied and find that the application was published in the Western Australian Industrial Gazette on 26 July 2000 (80 WAIG 2849) as required by s.72A(3) of the Act, and that thirty days have expired since the date of publication before the Full Bench commenced to hear this application.  There was no impediment, therefore, on that ground, to the Full Bench hearing and determining the application.

14              The Commission, constituted by the Full Bench, also afforded to those persons who established a sufficient interest to be heard pursuant to s.72A(5) of the Act a more than adequate opportunity to be heard, they having taken part in the whole hearing of this matter which was an extensive hearing.

15              The Full Bench was entitled to find jurisdiction and power in the Commission, constituted by the Full Bench, to make the orders sought.  Further, it was not contended that there was not.

CONSTITUTIONAL COVERAGE AND THE RELEVANT RULES

16              It was not in issue, as we have observed, that the CSA had and has had, for a period of many years, coverage, by virtue of its eligibility rule, of Fisheries officers.

17              The eligibility rule of the MSG, which is the subject of submissions and argument in these proceedings, having regard to its interpretation and construction, namely Rule 3, reads as follows:-

  “Members of the Mercantile Marine and dependent services possessed of certificates of competency issued or recognised by the Commonwealth of Australia, or any State thereof, the Board of Trade, or by any British possession or dependency, or possessed of any qualifications entitling him to undertake any duty connected with the navigation of vessels, may be elected as members.  Marine Engineers (so engaged), including Third Class and Port Engineers and Marine Engine Drivers, may be admitted to membership, provided that this Rule as to Engineers shall only apply in cases where such Engineer is not eligible for membership in or has been rejected by the Australian Institute of Marine and Power Engineers.

  This Rule as to eligibility of Engineers shall include Engineers upon vessels owned by the Government, but Engineers who have become Shipowners, Superintendents, or who are otherwise acting in the interest of employers, shall be strictly debarred from membership.  Apprentices who are bound by indenture for sea service to a Shipowner or Master (other than Engineer Apprentices) and Cadets may be admitted to membership but shall not be entitled to be nominated for or hold office or cast a vote in connection with the affairs of the Guild during their apprenticeship or cadetship as the case may be.  Together with any other persons employed in the industry of Shipping and Marine or not who have been or are hereafter elected as Officers of the Guild and admitted as members thereof.”

18              It is important to note here that the Full Bench in Merchant Service Guild of Australia, Western Australian Branch, Union of Workers and Fisheries Department of Western Australia and The Civil Service Association of Western Australia Incorporated (Intervener) 78 WAIG 3648 (FB) considered in some detail that eligibility rule and construed and interpreted it.  We will turn to that case in more detail in these reasons.

STATUTORY PROVISIONS

19              It is necessary to consider some of the statutory background relating to the appointment of Fisheries officers, their functions and the administration of the Fish Resources Management Act 1994 (hereinafter referred to as “the FRM Act”).  S.3 of that Act prescribes the objects of the Act and it is necessary and convenient to reproduce that provision hereunder:-

  “(1) The objects of this Act are to conserve, develop and share the fish resources of the State for the benefit of present and future generations.

  (2) In particular, this Act has the following objects –

   (a) to conserve fish and to protect their environment;

   (b) to ensure that the exploitation of fish resources is carried out in a sustainable manner;

   (c) to enable the management of fishing, aquaculture and associated industries and aquatic eco-tourism;

   (d) to foster the development of commercial and recreational fishing and aquaculture;

   (e) to achieve the optimum economic, social and other benefits from the use of fish resources;

   (f) to enable the allocation of fish resources between users of those resources;

   (g) to provide for the control of foreign interests in fishing, aquaculture and associated industries;

   (h) to enable the management of fish habitat protection areas and the Abrolhos Islands reserve.”

20              There are a number of relevant terms which are defined in s.4 of the FRM Act and they are as follows:-

 1. “AFMA” means the Australian Fisheries Management Authority established under the Fisheries Administration Act 1991 of the Commonwealth.

 2. “aquaculture” means the keeping, breeding, hatching or culture of fish.

 3. “Australian fishing zone” has the same meaning as in the Commonwealth Act.

 4. “boat” means a vessel, craft or floating platform of any description which is capable of use in or on water, whether floating or submersible.

 5. “commercial fishing” means fishing for a commercial purpose.

 6. “commercial fishing licence” means a licence granted under the regulations authorising a person to engage in commercial fishing.

 7. “commercial purpose” means the purpose of sale or any other purpose that is directed to gain or reward.

 8. “Commonwealth Act” means the Fisheries Management Act 1991 of the Commonwealth.

 9. “Department” means the department of the Public Service principally assisting the Minister in the administration of this Act.  (The Executive Director, who is a s.72A(5) participant in these proceedings, is the person appointed under Part 3 of the PSM Act to be the Chief Executive Officer of the Department known as “Fisheries WA”.)

 10. “fisheries officer” means a Fisheries officer referred to in s.11 of the FRM Act.

 11. “honorary fisheries officer” means an honorary Fisheries officer appointed under s.179 of the FRM Act.

 12. “licence” means:-

  (a)  an aquaculture licence;

  (b)  a commercial fishing licence;

  (c)  a fishing boat licence;

  (d)  a fish processor's licence;

  (e)  a managed fishery licence;

  (f)  a recreational fishing licence; or

  (g)  any other licence provided for in the regulations;

13. “recreational fishing” means fishing for a purpose other than a commercial purpose. 

21              The Minister is empowered under s.14 of the FRM Act to carry out any research, exploration, experiments, works or operations of any kind for the purposes of the FRM Act.

22              Part 3 provides for the Commonwealth or State management of fisheries and refers to a joint Commonwealth and State authority, namely the Western Australian Fisheries Joint Authority.  There is a prescribed arrangement under that Part for management of particular fisheries.

23              There is a provision under Part 4 for the creation of a number of advisory committees such as the Rock Lobster Industry Advisory Committee and the Recreational Fishing Advisory Committee.

24              Part 5 provides for the general regulation of fishing, including matters of prohibited fishing, protected fish, bag and possession limits and has a provision of a penalty for breaches of the FRM Act in Division 4 of that Part.

25              Part 6 prescribes for the management of the fisheries and the Minister’s part in providing for management plans, prescribing management plans with reference in that Part, too, to manage fishery licences and interim fishery permits.  Again, there is a prescription for offences for breaches of the provisions of that Part.

26              Fish processing establishments may not be established without a permit from the Executive Director of Fisheries WA under Part 7.

27              Part 8 deals with aquaculture and, inter alia, prescribes that the aquaculture may not be carried on without a licence granted by the Executive Director of Fisheries WA.  There is also provision for designated fishing zones, for the Abrolhos Reserve, for fish habitat protection areas and for a register of authorisations and exemptions to be kept and made.

28              Part 16 is of particular relevance because it enables the Executive Director of Fisheries WA to issue a certificate of appointment to each Fisheries officer (s.177(1) of the FRM Act).  Fisheries officers are to be appointed under s.11 of the FRM Act which reads as follows:-

  “11. There are to be appointed under Part 3 of the Public Sector Management Act 1994 such fisheries officers and other staff as are required for the purposes of the administration of this Act.”

29              S.179 of the FRM Act enables the Executive Director of Fisheries WA, by instrument in writing, to appoint a person to be an honorary Fisheries officer.  It is noteworthy that, under s.180 and s.181, police officers have the powers of Fisheries officers and naval officers have the powers of Fisheries officers in dealing with foreign boats.

30              S.182 of the FRM Act gives Fisheries officers powers of inspection.  S.183 gives them powers of entry onto land.  S.184 and s.185 give them powers of entry and search of non-residential premises or residential premises in connection with an offence, and under s.186, there is a power of entry of tents, camps and unauthorised structures.  Various warrants may be obtained by Fisheries officers pursuant to s.187 and s.188.

31              A Fisheries officer may require a person to provide, in certain circumstances, certain information, pursuant to s.189 of the FRM Act.

32              S.191 of the FRM Act prescribes a number of powers for Fisheries officers, including the right to require the production of documents and to examine them; to board boats and enter and search a boat or vehicle or a train or aircraft; to detain boats etc.; and under s.193, there is power to seize fish and vehicles, inter alia.  There are also offences prescribed relating to providing false or misleading information to Fisheries officers or obstructing them.

33              Part 17 of the FRM Act prescribes legal proceedings which may be instituted by the Executive Director of Fisheries WA, a police officer, a Fisheries officer, or any other person authorised in writing to do so by the Executive Director.

34              Part 18 of the FRM Act makes provision for levying, and the creation of various funds.  In particular, pursuant to s.238, the Fisheries Research and Development Fund, which is to be credited with fees and charges paid in respect of authorisations and exemptions, the register and services relating to commercial fishing, aquaculture and the processing of fish, as well as the management of fish habitat, protection areas or the Abrolhos Islands Reserve, rent, fees and royalties paid in respect of aquaculture, leases or executive licences or costs recouped from prosecutions relating to commercial fishing and sales of forfeited property, inter alia, as well as income derived from investment of monies forming part of the Fund as determined by the Treasurer and any other monies lawfully payable to the credit of the Fund, may be applied, inter alia, for a number of things prescribed in s.238(5) including:-

 (a) scientific, technological or economic research;

 (b) the exploration and development of commercial fisheries; or

 (c) defraying the costs of the administration and management of commercial fisheries, inter alia.

35              The FRM Act is nothing but an Act to enable the Government, through these officers, to manage and regulate fish throughout this State and its waters and to assist the Commonwealth in Commonwealth waters to enforce its laws.  Fisheries officers are officers who exist only for the purposes of that Act (and for other Acts such as the Pearling Act 1990 (as amended)). 

36              The statute, read as a whole, provides a prescription for the Minister and Fisheries WA and its officers, including Fisheries officers, to:-

 (a) Conserve, develop and share the fish resources of the State for the benefit of future generations.

 (b) Foster aquaculture, commercial and recreational fishing, not just commercial fishing.

 (c) Manage the fisheries to that end.

 (d) Regulate fisheries and fishing.

 (e) Assist the Commonwealth in regulation.

 (f) Prescribe for supervision, enforcement and penalties by Fisheries officers.

 (g) Conduct research, exploration or development and to defray the cost of the administration and control of commercial fisheries.

37              They are, too, if it is needed to be said, “Government officers”, for the purposes of s.80C of the Act.  It should also be noted that Fisheries officers are appointable as inspectors with powers of inspection, detention and enforcement under the Pearling Act  (see s.35 and s.36 of that Act).

38              On a fair reading of the statute as a whole and with particular regard to those sections to which we have referred above, it is fair to find as follows:-

(a) That the Minister, the Chief Executive Officer and Fisheries WA have been given duties and obligations to conserve, develop and protect the fish resources of this State.

(b) That they have duties in supervisory management of commercial and recreational fishing and aquaculture.

(c) That they have duties to control foreign interests, to enforce the law, to monitor and to survey.

39              Primarily, in every sense of the word, they are to manage and conserve, share and develop this State’s fish resources for the benefit of the people of this State now and in the future.

40              A fair reading of the statute alone is enough to persuade the Full Bench that, in terms of the Full Bench in Merchant Service Guild of Australia, Western Australian Branch, Union of Workers and Fisheries Department of Western Australia and The Civil Service Association of Western Australia Incorporated (Intervener) (FB) (op cit), Fisheries officers are officers of the Crown appointed to carry out statutory duties to achieve the objects of the FRM Act and the Fisheries Management Act 1991 (Cth).  They are subject to the PSM Act as public servants.  What they do to achieve those objects and discharge their duties would not, in our opinion, detract from the clear nature of their “employment”.

EVIDENCE AND WITNESSES

41              A number of witness statements were filed on behalf of the MSG and the s.72A(5) participants.  These were filed by consent pursuant to orders and directions made on 5 September 2000 by the Full Bench.

42              Evidence of witnesses was adduced on oath or affirmation or by written statement filed and so used by consent and by direction of the Full Bench.

43              In the case of the MSG, there was evidence adduced from the following witnesses:-

 (a) Mr Lawrence Robert Poole, Senior Fisheries Officer with 28 years service, a leading member of the Fisheries Officers’ Sub Association (hereinafter referred to as “FOSA”) and former President or Vice President of the MSG

 (b) Ms Natalie Patricia Ettridge, Industrial Relations Officer with MSG

 (c) Mr Bruce McLean Webber, Senior Fisheries Officer, Master, Patrol Vessel, employed since 1974

 (d) Mr Robert John Breeden, the Acting Manager, Central Support Service at the Fisheries Department and Secretary/Treasurer of FOSA

 (e) Mr Michael Eric Fleming, Secretary of the AMOU

44              For the CSA, evidence was adduced from the following witnesses:-

 (a) Ms Janice Lesley Blake, at all material times, an industrial organiser with the CSA

 (b) Ms Patricia Mary Summerfield, a Senior Policy Officer with the Ministry of Sport and Recreation, but prior to 19 February 1998 for a period of four years, a Senior Policy Officer with Fisheries WA

 (c) Mr John Noel Dasey, an advocate and industrial organiser and then Senior Industrial Officer with the CSA from 1997 to the present

 (d) Mr David Alexander Robinson, the Secretary of the CSA since December 1993, and a member of the Federal Council and Federal Executive, as well as a Federal Vice President, of the CPSU

 (e) Mr Stephen Robert Adams, an inspector in the Department of Transport and member of the CSA

45              For the Executive Director of Fisheries WA, evidence was adduced from the following witnesses:-

 (a) Mr David Edward Giles, Human Resources Manager, Fisheries WA

 (b) Mr John Grayden Looby, Manager Regional Services, Fisheries WA and an employee for thirty years

 (c) Mr John Charles Nicholls, Director of Strategic Planning and Policy at Fisheries WA

 (d) Mr Samuel Frederick Buick, Human Resources Projects Manager at Fisheries WA

46              In addition, a substantial number of documents was adduced in evidence.

47              We wish to say that the Full Bench has had substantial opportunity to see and hear important witnesses in the witness box and has carefully considered their demeanour and evidence.

48              Whilst we agree with the submission that Mr Poole’s efforts on behalf of his fellow Fisheries officers have demonstrated laudable zeal, we are of opinion that his evidence was coloured at times by that zeal.  Accordingly, where his evidence is in conflict with that of other witnesses, including Ms Blake and Mr Robinson, we prefer the evidence of the other witnesses.  In particular, too, we found Ms Blake to be an impressive and competent witness whose evidence we accept.  Mr Breeden, too, was a forthright witness and we prefer his evidence, where it was in conflict with that of Mr Poole.

49              There were submissions on behalf of the CSA and Fisheries WA that significant portions of the evidence, by written statement, of some witnesses for the MSG, including Mr Poole’s, should be struck out.  The Full Bench did not accede to those submissions, being firmly of the view that the evidence was better dealt with as a matter of weight.

50              There was, in the written statements and in other evidence, a great deal of evidence concerning constitutional coverage, unqualified legal opinions, some gratuitously offensive statements, some evidence dealing with matters which were questions for the Full Bench and not for the witnesses, some irrelevant evidence, and some argumentative evidence, to all of which, without detailing it, we would attach no weight.

BACKGROUND

51              Fisheries officers are appointed under the FRM Act and Part 3 of the PSM Act.

52              Exhibit 5, which is an employment information document provided to Fisheries officers, notes that Fisheries WA is responsible for managing the use and harvesting of fisheries resources at ecologically sustainable levels and managing the development of aquaculture in order to maximise the economic benefits to the State by conserving and protecting the State’s aquatic ecosystems for the benefit of the present and future Western Australian community.

53              It asserts that Fisheries officers play a major role in the protection and conservation of Western Australian marine and aquatic resources by ensuring compliance with management rules through law enforcement, community education and “liaison with our clients”.  It is clear that successful applicants are required to work irregular hours at a range of locations throughout the State and that considerable time away from home may also be required.

54              In some instances, this involves living on departmental or other vessels.  Fisheries officers are required to wear uniforms provided by Fisheries WA whilst on duty.

55              Their duties entail:-

 1. Law enforcement programmes requiring the apprehension and prosecution of offenders in field situations.

 2. Customer awareness and education programmes requiring the presentation of information to members of the public and community groups.

 3. Liaison with the fishing industry, community groups, members of the public and other Government agencies and advising on fisheries matters.

 4. Adherence to departmental policies, procedures and principles.

 5. Conducting marine and land based patrols.

 6. Operating four wheel drive vehicles and small vessels.

 7. Presenting evidence in a law court and serving summonses.

 8. Preparing and submitting written reports.

 9. Maintaining departmental boats, vehicles and equipment.

 10. Issuing licences and attending administrative duties.

 11. Carrying out surveillance patrols and travelling aboard aircraft from time to time.

56              Quite rightly, given the statutory structure as we have outlined above, the document asserts that Fisheries WA is responsible for managing the fish resources of this State for the benefit of the whole community, both past and present.  Fisheries WA has a staff of around 300 which includes about 86-88 Fisheries officers presently.  The Regional Services Division is staffed by approximately 80 Fisheries officers, eight of whom are funded by the Commonwealth to supervise Commonwealth fisheries management programmes (see the statutory scheme above), including responses to illegal foreign fishing vessel activities.

57              As well as the supervision of commercial fishing, it is clear from this exhibit that there is a rapid growth in the popularity of recreational fishing, the supervision of which is also part of the responsibility of Fisheries officers.

58              Fisheries officers are stationed at places all over the State, from Albany in the south to Broome in the north and at places such as Carnarvon, Fremantle, Geraldton, Esperance, Exmouth, Mandurah, as well as other places, with a number at the department’s head office in Perth.  We are satisfied with that evidence and so find.

59              There was substantial evidence from Mr Looby who has been a Fisheries WA employee for thirty years.  His evidence was not seriously contradicted or shaken.  There was some evidence from Mr Breeden and Mr Webber doubting his quantification of sea time worked, but they did not have access to the actual records of employment to which Mr Looby and his staff had access.  We accept Mr Looby’s evidence (see exhibit 33).

60              Key duties of Fisheries officers, as we find, are as follows:-

“Conducting law enforcement activities including surveillance, monitoring, investigation and prosecution of offenders.

Delivering community and customer awareness programs including the management of volunteers and the presentation of information to client groups, the general public and the media.

Liaising with the fishing and aquaculture industry, community and regional interest groups, members of the public and other agencies.

Maintaining District Offices including management of staff and resources.”

61              Key activities of Fisheries officers are as follows:-

  “Monitoring, Control and Surveillance – which covers activities such as air patrols land patrols, sea patrols, inspections of fish dealers, investigation of suspected offenders, prosecution and satellite vessel monitoring.

  Advice and Education – which covers the provision of advice to clients and Agency staff, media liaison, assistance with development and delivery of community awareness information and programs, input into regional committees and management of the volunteer fisheries liaison program.

  Administration – which includes management of staff, capital items and resources, office support, planning and development functions.”

62              Marine activities by Fisheries officers are as follows:-

  “8.  Marine activities undertaken by Fisheries Officers are essentially for enforcement purposes to ensure compliance with the fisheries legislation.  Vessels used by Fisheries WA are basically surveillance platforms required for monitoring and enforcement functions in the marine environment.  The key at sea inspection activities are the inspection of fishing gear, monitoring of closed areas and auditing of pearl oyster quota requirements.

  9.  It is estimated from a total of 171,078 hours delivered by Fisheries Officers for 1999/2000 recorded in the Agency time sheet, 36,435 hours (21.3%) related to on water activities by Fisheries Officers. (See Attachment 2)”

63              The Seagoing Patrol Boat Business Unit carries out the following activities:-

  “ (i) Seagoing Patrol Boat Business Unit

  11.  The Agency operates 3 seagoing patrol boats (20m class) which are manned by 3 or 4 crew (total 10 officers) who are permanently appointed to the vessels and who operate and live onboard for periods between 8 and 20 days.  Crew on patrol vessels average 150 sea days per year.  Full-time seagoing officers constitute approximately 11-12% of the total number of Fisheries Officers and deliver approximately 50% of the total boat days for all Fisheries Officers. (my underlining)

  12.  Except for the actual crews of the patrol vessels very few Fisheries Officers would be involved at any significant level in watch-keeping or operations on vessels above 10m.

  13.  Patrol vessels are enforcement platforms which allows Fisheries officers to conduct marine monitoring, control and surveillance activities.  All crew on the patrol vessels are Fisheries Officers and are either directly involved in fisheries enforcement operations or providing logistical support to other officers conducting such operations.  These vessels are occasionally used for research purposes or servicing other Agencies’ at sea commitments which may include the transport of personnel and equipment.

   (ii) Small Boat Operations (<10m)

  14.  The Agency operates boats which range from small 3m punts to 10m boats which have limited built in accommodation.  This class of vessel mainly operates in inshore and protected waters and patrols are usually confined to day operations not involving over night accommodation on the vessel.

  15.  The key activities conducted from small boats are patrols to ensure compliance with the management legislation made under the FRMA.  Limited research and other agency support activities are also undertaken.

  16.  The utilisation rate of this class of vessel is very low and on average small boats are used approximately 20 days/year with an average engine hours of 3.5 hours/day.  Patrol activity in small boats represents approximately 10% of the total days worked by Fisheries Officers not attached to the Seagoing Patrol Boat Business Unit. (See Attachments 3a and 3b)

 (There must be availability, as Mr Poole asserted, to work on small vessels at sea.)

   (iii) Accompanying Commercial, Charter, Naval or External Agency Vessels to Sea

  17.  In this role Fisheries Officers generally proceed to sea on vessels from other Agencies to conduct enforcement, monitoring or surveillance functions but are not responsible for the navigation, safety or operation of the vessel which is under the command of personnel external to the Agency.  The use of seagoing vessels by these officers is mainly for the purpose of transport to their place of work. (ie the point where the enforcement activities are carried out).

  18.  The Australian Fishing Zone Unit, (AFZ Unit) which consists of 11 Fisheries Officers, operates within the 200nm Australian Fishing Zone off WA, Cocos and Christmas Island territories and Australian Sub Antartic territories and are the only other group of Fisheries Officers with a requirement to conduct significant at sea patrol activity.

  19. The AFZ Unit averaged approximately 43 days at sea/officer over the past two years which represents about 21% of the total annual days worked by those officers. (my underlining)

  20.  In respect to all other Fisheries Officers (excluding the AFZ and Patrol Boat Units) the level of at sea inspection on vessels other than Fisheries WA vessels is very low and is estimated to be less than 2% of total activity by Fisheries Officers.” (my underlining)

64              The following Marine Qualifications must be held:-

  “21.  All Fisheries Officers must hold marine qualifications to operate Agency vessels.  The majority of the Agency’s vessels can be operated with a Small Boat Proficiency Certificate (SBPC) which permits the use of a vessel up to 10 metres within 5 miles of shore.  This qualification does not require previous seagoing experience.

   22.  Historically the SBPC was not available and the minimum marine qualification was the Certificate of Competency as Coxswain (CCC).  Consequently this qualification is held by most Fisheries Officers and reflected in Job Description Forms for Fisheries Officers.  Whilst it is not essential that all Fisheries Officers hold marine qualifications above the SBPC, a CCC is either essential or desirable to operate the Agency’s 7-10 m vessels.  For Occupational Health and Safety reasons it is desirable that officers hold marine qualifications above the minimum lawful requirement.  For the 10m class of vessel the Master Class 5 Certificate is essential for the Master of those vessels in order to maximise the operational capability of those vessels.

   23.  The 23m PV “Walcott”, which is one of the Agency’s 20m patrol boats, requires the Master to hold a Master Class 4 and Marine Engine Driver Certificate Class 1.  The other two 20m class PVs require a Master Class V and Marine Engine Drivers Certificate Class 2.”

65              Future trends in Fisheries Officers’ duties are as follows:-

  24.  It is unlikely that there will be a significant increase in the level of at sea compliance duties undertaken by Fisheries Officers in the near future.  This forecast is based on the Agency fleet remaining stable or further reducing through joint servicing arrangements with other marine based Agencies which allows for the sharing of marine assets.

  25.  The future focus on surveillance and enforcement activities with respect to the commercial industry will be away from expensive at sea patrolling and enforcement activities to the use of remote electronic satellite vessel monitoring of the commercial fishing fleet.  National and international management trends are away from traditional input fisheries management (involving field compliance) to output or quota management (involving accounting for and auditing product through paper trails).

  26.  The development of the land based component aquaculture industry in WA will also result in an increasing demand on Fisheries Officers to ensure compliance with aquaculture license conditions.

  27.  Any future restructure with improved resourcing may allow an increase in the level of field services provided by Fisheries Officer but this will most likely occur in the recreational fishing area which has a focus on a community awareness and education role rather than dedicated at sea patrolling.”

66              Provision and cost recovery of Fisheries WA Services are as follows:-

   “28.  Fisheries WA does not provide or trade goods or services to the fishing industry in a commercial sense.  Fisheries WA provides management, research and compliance services on behalf of the State of Western Australia to meet the objectives of the FRMA.

  29.  The FRMA provides for statutory Ministerial Advisory Committees (MAC’s) which are consultative mechanisms for the Minister for Fisheries.  Most commercial fisheries have MAC’s which provide a range of advice to the Minister including the level of management, research and compliance outputs necessary to sustainably manage the fishery.

  30.  There is no external contractual arrangement between the MAC’s or the fishing industry with the Minister for the provision of Agency services.  It is the Minister’s prerogative and responsibility to determine the level of services provided to meet the objectives of the FRMA. (my underlining)

  31.  The cost of some of the services provided by Fisheries WA are directly recovered through licence fees from the authorisation holders of major fisheries.  This includes a contribution to the Development and Better Interest Fund through a fee based on 0.65% of the gross value of the particular fishery.  Fisheries WA operates under a funder, purchaser, provider model but this is an internal Agency model.”

67              We accept Mr Looby’s evidence as follows:-

 (a) That 62% of the time spent by Fisheries officers is spent in monitoring, control and surveillance.

 (b) That 9% of their time is spent in education and advice.

 (c) That 29% of their time is spent in other activities.

68              We would observe that, quite clearly, officers use boats to go to sea to carry out their duties as, no doubt, on land they use motor vehicles or aircraft perhaps.

  Marine Activities:-

  (i) That 13% of time is spent in sea patrols.

  (ii) That 78% is spent in other activities.

  (iii) That farm and nursery inspection takes up 2% of time.

  (iv) That sea collection takes 1% of time.

 (d) 63% of the vessels operated by Fisheries officers are 1 to 5 metre vessels, 28% are 5.5 to 10 metre vessels and 9% are 10.5 metre or more vessels.

 (e) In fact, 20 officers are responsible for putting in over 50% of sea time.

69              However, we accept Mr Poole’s evidence that, because each officer is subject to transfer, it is more probable than not that the officer cannot avoid carrying out duty at sea.  It is not clear that this would involve a great deal of time, however.

70              It was asserted by some witnesses that it is necessary that Fisheries officers have a Marine Competency Certificate to enable them to master craft, but that is no longer an indispensable requirement, according to the latest job description form, as we find (see exhibit 21A-21D).  There is, however, competence required in small boat handling.  There are a number of large patrol vessels owned by Fisheries WA in excess of twenty metres in length, but only twenty-one persons man these, although other officers may, from time to time, be required to work on them.  These are ocean going vessels, as well as a large number of small craft which are, of course, used and hence the use of a Small Boat Competence Certificate.  It is quite clear that, whilst a Certificate of Competency is required for the operation of large vessels, there is no competency requirement for all officers to hold such certificates.

71              It is clear, and Mr Poole admitted it, that for some officers, 100% of their time is spent on land (see page 250 of the transcript (hereinafter referred to as “TR”)).  Fisheries officers carry out duties at sea and on land.

72              As was admitted with commendable honesty by Mr Webber (see page 276(TR)), and as Mr Poole effectively admitted, as the statutory provisions and all of the evidence reveal, the overwhelming flavour (and, indeed, nature) of the duties of Fisheries officers are those of public service officers acting on behalf of the Crown.  (The nature of the funding, which is departmental funding, is quite irrelevant to that fact.)

73              Accordingly, if, as Mr Webber said in evidence, that his management had said that Fisheries officers are a service industry (one assumes for commercial fisheries) and the service is not provided, they are out of a job (see page 276(TR)).  That is an entirely erroneous assertion.  The officers’ sole role is, according to law and their lawful duties, to carry out their functions as officers.  The reason for their existence is two Acts of Parliament.

74              As Ms Ettridge admitted, Fisheries officers cannot be considered part of the Mercantile Marine.  Their duties are plainly governmental and not carried on for profit (see page 314(TR)).

Costs Recovery

75              Something was said about the costs recovery concept under which participants in the six major commercial fisheries pay for the full identified recoverable costs of managing these fisheries and the participants of all minor managed commercial fisheries contributed to the costs of managing their respective fisheries, based on a percentage of the gross value of catch for the particular fishery.  The cost recovery policy appears in a Fisheries WA statement (see exhibit 4 – LP-2).

76              The State Government, as part of this arrangement, has agreed to:-

 (a) Contribute to the costs of managing minor fisheries, the recreational fishing programme and the fish habitat management programme.

 (b) Meet the costs not recoverable from the major commercial sector.

 (c) Underwrite costs recovery during the implementation phase within specified monetary limits.

77              It was also said that the Department was moving to provide services on a full cost recovery basis.  It is noteworthy that the State Government undertook to underwrite costs of carrying out functions of Fisheries WA which were not met by costs recovery in relation to commercial fisheries, which of course one would expect to happen.  That, of course, highlights the obvious, which was also adverted to by Mr Nicholls in evidence.

78              The Minister of the day and the department and its officers are charged with duties and obligations and responsibilities under the FRM Act.  They are answerable to Parliament ultimately.  Thus, if costs recovery funding were not used or was not available, there would have to be other Government funding and/or other means used to raise revenue.

79              In addition, the licence registry operates as a separate business unit and, therefore, a separate range of service fees and charges to meet the estimated transaction costs also applies.

80              It is clear from the evidence of Mr Looby and others that only a small amount of time is spent at sea.  It is also, however, clear that the regulatory duties of Fisheries officers take them all over the State and into Sub Antarctic waters.  The overwhelming evidence was that there was no involvement by Fisheries WA in commercial or trading activities.  We so find (see the evidence of Mr Looby, Mr Nicholls, Mr Breeden and Mr Webber).

Industrial Representation – Awards and Agreements Negotiations

81              In 1938, a Public Service Agreement was entered into which provided for the payment of overtime and allowances, including camping allowances for all permanent public servants who were remunerated through a succession of public service allowances agreements.  There are various agreements which are descendants of that agreement and which have been referred to in this case.

82              The Public Service Award 1992 covers Fisheries officers.  There is also what seems to be the perennial question of commuted overtime allowances and the adequacy or otherwise.  The Public Service Allowances (Fisheries and Wildlife) Award 1990 also applies.

83              The CSA has been a party to these awards for some years.  Indeed, it has been a party to the 1938 agreement and its successors since that date.  The MSG has never been a party in this Commission to awards or industrial agreements on behalf of Fisheries officers.  The CSA has not only been a party to the relevant awards and agreements since 1938, but has played a major part in developing them.

84              Fisheries officers have remained eligible to be members of the CSA for many years.  Indeed, a large number of them remained members until April/May, 1996 when a large number resigned and purported to join the MSG.

85              Whilst they purported to remain members of the CSA, the Fisheries officers, represented by Mr Poole, had a separate organisation which, as we understand it, purported to remain within the CSA until the resignations of 1996, called the “Fisheries Officers’ Sub Association” (FOSA), of which Mr Poole has been an officer for some time and which has continued to represent Fisheries officers on a de facto basis.

86              For the Fisheries officers, there have been ongoing issues involving seagoing (victualling)  allowances which reflect the actual costs of living away from home and which have not been maintained in relation to camping allowances on which they were originally based, and the “hard lying allowance” which had not been reviewed regularly, in any event, since its inception in 1982.

87              The awards are said, at least by Mr Poole in evidence, to have failed to remedy the problem which Fisheries officers say exist in relation to commuted overtime allowances.  Thus, as it is alleged, Fisheries WA is “the net benefactor of thousands of hours of unpaid toil which has been regularly supplied by Fisheries officers working under direction supervision.  Fisheries WA benefits from the commuted overtime arrangements because it regularly has the advantage of unpaid work hours or work at rates of pay which are at less than ordinary time.”

88              There was, as a matter of evidence, a series of increases in the seagoing allowance from 1983 to 1996, totalling a 65% increase, effected by the CSA which we accept as satisfactory, despite Mr Poole’s assertion to the contrary.  We should add that it was a complaint of Mr Poole that there were no wage increases before the 1996 EBA for some years.  However, we accept Ms Blake’s and Mr Dasey’s uncontroverted evidence that this was so in the early 1990’s because of the operation of the Wage Fixing Principles.  Their assertions were not challenged either in cross-examination nor by submission.  In any event, we do not accept, on the evidence, that this was due to CSA inaction.

89              It is clear that difficulties with the commuted overtime allowance are not readily resolvable.  Whether this can be resolved by variation to the Public Service Allowances (Fisheries and Wildlife) Award 1990 or whether such a variation is achievable is not clear to me.

90              By virtue of s.26A of the Act, evidence of what is contained in or the existence of any workplace agreement (as defined) cannot be received or admitted in evidence by the Commission.

91              It was the evidence, which we accept, that these matters were to be considered in relation to the negotiations for the 1996 EBA.

The 1996 EBA

92              During 1995 and early 1996 when there were negotiations for an enterprise bargaining agreement, later entered into, as the “Fisheries Department of  Western Australia Enterprise Bargaining Agreement 1996” (76 WAIG 1818) with a duration of 18 months (being registered on 14 May 1996) (hereinafter referred to as “the 1996 EBA”), and followed in 1999 by the “Fisheries WA Enterprise Bargaining Agreement 1999” No PSG AG 1 of 1999 (79 WAIG 1942) (hereinafter referred to as “the 1999 EBA”) which replaced the 1996 EBA, being registered by order dated 6 July 1999.

93              Prior to the entry into the EBA in 1996, there was a single bargaining unit (hereinafter referred to as “the SBU”) put in place in Fisheries WA which consisted of a number of members.  Fisheries WA was represented by senior officers of the department.  The CSA was represented by Ms Blake who gave evidence in these proceedings, as she was then the industrial officer for Fisheries WA employees.  There was a total of five workplace delegates under the CSA rules representing 276 employees of whom 165 were union members, and representing the five divisions within the Department, including Fisheries officers.  Mr Poole was one of the delegates, representing Fisheries officers, as was Ms Summerfield, representing policy and management employees.  In due course, an EBA was negotiated and approved by the SBU.

94              At that time, according to uncontroverted evidence, there were 65 Fisheries officers amongst the CSA members in Fisheries WA.  All other Fisheries WA employees were then covered by the Public Service Award 1992, as were Fisheries officers and technical officers who were also covered by the Public Service Allowances (Fisheries and Wildlife) Award 1990.

95              It was asserted by Mr Poole that there was little affinity or empathy between the field staff, namely Fisheries officers and technical officers, and the remainder of the SBU, although, as we observe, all were CSA delegates and, contrary to that view, on the evidence, Fisheries officers’ concerns took up and were permitted to take up a great deal of the time of the SBU deliberations.

96              There was strong and uncontroverted evidence, and we are satisfied and find that the concerns of the Fisheries officers and, to some extent, the technical officers to rectify problems which they had with the commuted overtime arrangements were permitted by other delegates to take up a large part of the proceedings of the SBU.  Mr Poole asserted that there was no support from management or the CSA, or other delegates, for attempts to remedy what he called the ambiguous nature of the commuted overtime arrangements.

97              However, the overwhelming evidence, as we have said, was that the delegates allowed a great deal of time to be spent in the SBU deliberations in the airing and discussion of the Fisheries officers’ concerns.  We so find.

98              Both the CSA and the employer had said that the EBA process was the appropriate mechanism to make changes before the commencement of negotiations.  Mr Breeden said that either a workplace agreement or an EBA were the only vehicles available to resolve the matters which they wished to be resolved.

99              There was major disagreement, too, in relation to Clause 22 – the seagoing allowance, and according to Mr Poole, management said that these negotiations would be taken off the table if he continued to hold the process up and he was given no support by other delegates in relation to this matter.  However, that matter was resolved.

100           In the end, a ballot was held of all Fisheries WA CSA members which resulted in the EBA, as negotiated, being agreed to.  (We will refer to that ballot in more detail later.)

101           According to Mr Poole’s evidence, the parties failed to make changes to working conditions by award variation, it was impossible to make changes through the process of the SBU via the EBA, whilst represented by the CSA, because Fisheries officers did not have the numbers, and thus, the only answer was to leave the CSA and have their own autonomy under an award with another union.  He said that it was the view of Fisheries officers that, if they did not do this, then it was inevitable that their working conditions would not be protected because they would gradually be eroded by successive trade-offs under the EBA process.

102           Mr Poole asserted that the CSA had demonstrated a poor record and lack of accountability in its representation and service to members who are Fisheries officers, that Fisheries officers’ working conditions and arrangements are not fair or equitable in comparison to other public sector employees and they are clearly disadvantaged, that parties to the awards and agreements which cover Fisheries officers have demonstrated a track record of eroding working conditions by means of inequitable and unfair wages trade-offs, and that it is not in the “public interests” of the community or Fisheries officers  that the working conditions, arrangements and representation are unfair and inequitable.  He said that, over the last 25 years, the CSA had failed in its obligation to Fisheries officers to represent and protect their working conditions.  Those allegations were denied in evidence by Mr Robinson, Mr Dasey and Ms Blake.  There was evidence, too, from Ms Summerfield who said that Ms Blake was very professional.

103           It is quite clear, and indeed there was drafted a separate EBA (exhibit 9) which took account, inter alia, of particular Fisheries officers’ concerns, that Fisheries officers required a separate EBA which covered them alone.  That draft was produced at a SBU meeting.  Fisheries WA would not agree to a separate EBA and required an EBA which covered all of its “employees”.  That is a stance to which Fisheries WA adhered throughout the negotiations and afterwards and to which still adheres.

FOSA Resolution to Resign

104           On 8 November 1995, at the Annual General Meeting of FOSA with 48 members present, a secret ballot was conducted.  (We are not aware what numbers voted for the resolution.)  As a result, a resolution was passed in the following terms:-

  “We the undersigned Fisheries Officers wish to make it quite clear that our special and unique workplace has decided and resolved between us the following issues which will govern our entry into a “whole of the Dept.” Enterprise Bargaining Agreement (EBA).

  1) Clause 6 of the Fisheries Dept. Draft EBA dated 3-11-95 shall be altered to allow Fisheries Officers to automatically withdraw from the agreement at the term of expiry unless written notice is provided to the employer to WAIRC to continue.

  2) In the absence of Single Bargaining Representatives (SBU) agreeing to the amendment of Clause 6 in accordance with our workplace vote, Fisheries Officers insist that the CPSU/CSA suspend negotiations to include our workplace in any such agreement.  Alternatively, the CPSU/CSA shall pursue a parallel EBA for Fisheries Officers which would treat them as a discreet group under their own EBA.

  3) If the CPSU/CSA, Fisheries Dept and other SBU representatives decide to ignore the wish of Fisheries Officers in accordance with clause 1 & 2 of this motion, we as a group have decided to resign on mass(sic) from the CPSU/CSA and appoint our own bargaining agent to negotiate a collective workplace agreement with the employer or continue with EBA negotiation on the SBU represented by another union who will have the coverage of our resigned membership at the negotiating table.”

 (See exhibit 4 – LP12.)

105           This resolution was communicated to the CSA.  According to the evidence of Mr Robinson, and there is no doubt of this fact, this caused a great deal of concern to the CSA because the resolution, if acted upon, meant a substantial loss of membership.

Meeting – Robinson, Poole and Blake – 27 November 1995

106           As a result, Ms Blake and Mr Robinson met Mr Poole to discuss this problem on 27 November 1995.

107           Mr Poole reported after that meeting, in a memorandum dated 7 December 1995 to FOSA members (see exhibit 15), a report signed by the President of FOSA, Mr Tony Lemmon, that when he met Mr Robinson:-

   “Dave Robinson was firm in his view and would not reneg (sic) his decision and decided arbitrarily to lock Fisheries Officers into the proposed EBA without our consent and contrary to our motion passed on the 8th of November AGM.

  In view of this course of action by the CPSU/CSA, who have the added support of the Fisheries Department on the matter arrangements are in progress to seek an alternative union to represent us in the future and so that our working conditions will be protected from future trade-offs.  At the moment you are asked not to resign from the CPSU/CSA.”

108           Since we accept Ms Blake’s and Mr Robinson’s version, reluctantly agreed to by Mr Poole in cross-examination, it is quite clear and we find that that version of events does not reveal all that occurred or was said and, indeed, misrepresents the position.

109           Mr Robinson’s evidence, eventually admitted by Mr Poole, was that at that meeting he, Mr Robinson, offered to go to the Department and ask them to agree to a separate EBA for Fisheries officers, notwithstanding that this was against CSA policy, or to a separate schedule in the whole of department EBA to refer to Fisheries officers.  He did make that approach to Mr Peter Rogers, the Chief Executive Officer of Fisheries WA, but the Department would not agree to either proposal.  Further, as we find, Mr Robinson told Mr Poole that, if the Fisheries officers voted in a block, there was a good chance that the EBA would not be approved.  Significantly, that advice was not passed on to Fisheries officers, either.

110           Whilst Mr Poole was aware of this, he admitted that he did not advise his colleagues in his circular of these advices or occurrences, or at all, which was, it is clear, a serious and inexplicable omission.  It was after that, that Fisheries officers resigned en masse from the CSA and purported to join the MSG.  Indeed, the resignations occurred two weeks after the ballot in relation to the 1996 EBA.

111           Eventually, the 1996 EBA was approved by the SBU.  It was, as Fisheries WA insisted, a whole of Department EBA covering all employees.  It was the best they could get, Mr Poole said, and he did not dissent.  It did not draw trenchant criticism from Mr Breeden and Mr Webber.  Significantly, there were no resignations until after its approval.

Ballot

112           On 20 March 1996, a ballot was held so that members of the CSA in Fisheries WA could approve or disapprove the draft EBA which had been negotiated between the employer and the CSA representatives and earlier approved by the SBU.

113           The organisation of the ballot was in the hands of Ms Blake.

114           The question asked to be answered “yes” or “no” was:-

  “I accept the provisions of the proposed Enterprise Bargaining Agreement for Fisheries Department of Western Australia including the proposed pay increases.”

 (See exhibit 26 – JB24.)

115           We accept Ms Blake’s uncontradicted evidence that 175 ballot papers were issued.  56 of the 175 members were Fisheries officers, namely 31% of the total.  98 ballot papers were returned.  None were marked “informal”.  The total vote case was by 56% of the membership.  Of the votes cast, 80 were “yes”, 18 were “no”.  82% voted “yes”.  Only 18% were against the EBA.

116           There was a vote of overwhelming approval for the EBA in numbers and percentage.  A reasonable inference is that those who did not vote were not opposed or were indifferent to the result.  It is quite wrong to say that a high percentage did not approve because they did not vote.  A high percentage of those who took the trouble to vote which, after all, determined whether the 1996 EBA was to be entered into, voted to approve the EBA.

117           Significantly, there is no evidence that the Fisheries officers wished to oppose the EBA, voted accordingly, or had made any decision to do so.

118           On 12 March 1997, when 69 Fisheries officers were members of the MSG, an application was made by the MSG for an award for Fisheries officers which application was dismissed by the Commission, constituted by a single Commissioner, on the basis that there was no constitutional coverage in the MSG (see Merchant Service Guild of Australia, Western Australian Branch, Union of Workers and Fisheries Department 78 WAIG 2691).

119           Subsequently, that decision came before the Full Bench on appeal and, on 18 September 1998, the Full Bench upheld the decision that there was no constitutional coverage by the MSG of Fisheries officers and dismissed the appeal (see 78 WAIG 3648) as we have said above.

120           However, Fisheries officers have not remained members of the MSG.  (42 members, less than half, voted not to go back to the CSA.)  Notwithstanding that, of course, because the CSA has coverage of them, they have benefited from the 1996 and 1999 EBA’s.

121           In recent times, Fisheries officers have been negotiating workplace agreement coverage.

122           Before the Full Bench was a petition (exhibit 25 – RJB-1) signed by 84 Fisheries officers seeking to be granted coverage by the MSG collected by Mr Breeden in early 2000.

123           According to Mr Poole, there was an alleged threat by Mr Looby that, if they did not come off the award, he would force them onto workplace agreements.  We would also add that we are not satisfied, if it is at all relevant, that Mr Looby threatened Mr Poole and Fisheries officers in the course of negotiations.  (We prefer Mr Buick’s evidence, which contradicted Mr Poole’s.)

124           The CSA and Fisheries WA negotiated an EBA which was registered in the Commission on 6 July 1999 (79 WAIG 1942), as we have observed, and which attracted no or little criticism in evidence.

Did the CSA achieve all that could reasonably be achieved for Fisheries officers?

125           We are satisfied and find that Mr Poole took a prominent part in all SBU discussions and the concerns of Fisheries officers were given a generous amount of time in the deliberations of the SBU.  Mr Poole advised the SBU meeting of 12 September 1995 that Fisheries officers wanted to be a separate group under the EBA (see exhibit 26 JB-14).  Ms Blake was not of opinion that this was a problem, given that there were separate productivity initiatives for the different divisions.

126           We also find, accepting Ms Blake’s evidence, that Mr Looby and Mr Poole met and negotiated, for the purposes of the EBA, a hard living allowance for Fisheries officers of $27.20 which was agreed to by Fisheries officers and included in the EBA when it was approved.

127           Mr Poole, on 7 November 1995, sought that the EBA be amended to allow Fisheries officers to withdraw automatically from the EBA at the expiration of its term (see exhibit 26 – JB-16), which was not agreed to.

128           Not only were Fisheries officers’ concerns raised and considered in the SBU, but Mr Robinson, Mr Eddie Rea, Ms Blake’s senior at the CSA, met Mr Rogers, Mr Peter Millington and Mr Giles on 20 November 1995 to specifically discuss Fisheries officers’ concerns.  At that meeting, both Fisheries WA and the CSA confirmed their views that their preference was for a whole of department EBA.

129           Mr Giles expressed the view that, alternatively, Fisheries officers could stay on the award and have no EBA, or enter into workplace agreements.  Mr Poole supported at the SBU meetings the 11.35% salary increase (even though he told Mr Robinson on 27 November 1995 that, if they could not get a separate EBA, Fisheries officers would remain on the award).

130           The fact of the matter is that at no time did Mr Poole withdraw from the SBU and, further, the resignations of Fisheries officers only occurred after the 1996 EBA, with the increases which it brought, was approved.  There is no evidence that Fisheries officers voted against it as Fisheries officers.

131           There is also no evidence of any expressed FOSA policy that the EBA should be voted against.  There was no FOSA policy amended to forgo the benefits of the 1996 EBA and to remain subject to the award only, nor is there any evidence that anyone took such a course.  There was no policy decided upon by FOSA to seek to enter workplace agreements.  Mr Poole’s own evidence was that the 1996 EBA was the best which could be achieved (see page 110(TR)).  He accepted, too, the allowance and negotiated, saying that $27.20 was a good result for those entitled to a victualling allowance.

132           Mr Breeden and Mr Webber’s evidence was generally that the trade-offs contained in the EBA were minor, a view supported by Ms Summerfield.  We so find.

133           Further,  the evidence unequivocally was that, since Fisheries WA would not negotiate a separate EBA (Fisheries WA could be said to be adamant about this),  and the clear inference from that, therefore, is that Fisheries officers alone or through any other organisation could not have done any better.  Further, when they did seek their own award by application of the MSG, the MSG was specifically instructed not to seek an award in different terms from their existing conditions of employment (which were governed by the 1996 EBA), and did not do so.

134           We are satisfied that Ms Blake played a competent and satisfactory part in the negotiations.  We are also not satisfied that the CSA, at least from the early 1990’s, allowed work conditions to be eroded, generally, and for reasons which we express hereinafter.

135           The 1996 EBA:-

 (a) Achieved an increase in salary of 11.35%, 7% of it not being subject to trade-offs.

 (b) Was limited to the following trade-offs:-

(i) Removal of two additional public service holidays for Easter and New Year.

(ii) Three days short leave per year removed and replaced with two days bereavement leave per year.

(iii) Annualised leave loading.

(iv) An increase from a 37½ hour week to a 38 hour week.

136           Clause 22 made provision for seagoing staff as follows:-

 (a) A hard living allowance increased from 37c to 40c per hour at sea.

 (b) An Australian Fishing Zone (“AFZ”) allowance was applied to AFZ patrols in lieu of the hard living allowance.

 (c) The Victualling Allowance was increased.

137           In any event, as Mr Breeden admitted, only about 20 officers in all would have any great interest in the Victualling Allowance and the hard living allowance (see page 343(TR)).  It was admitted in evidence by Mr Breeden that increases of this type could only be achieved by the EBA process.

138           The CSA, by Ms Blake’s evidence and Mr Robinson’s evidence, asserted that it had done all it could to represent Fisheries officers because:-

(a) There had been in operation a seagoing allowance (negotiated by Mr Poole to replace the victualling allowance) and the CSA obtained parity with the camping allowance, as enjoyed by Marine and Harbour employees at the Department of Transport.

(b) Dealt with all Fisheries officers’ concerns which dominated the issues or concerns of the four other CSA divisional groups in the SBU.

(c) Included EBA separate productivity initiatives for specific groups.

139           There were complaints in evidence that matters such as merit promotion and other matters raised in the draft EBA were not included in the 1996 EBA.  That item and the transfer of staff question were, however, attended to.  Fisheries WA undertook to include it in its policy.  (See also the justification of the EBA exhibited to Ms Blake’s statement (JB-23).)  Other matters were already covered by the award.

140           Again, there is no evidence of any difficulty since.  As to leave payments, we accept Ms Blake’s evidence that Mr Poole did not wish to pursue them in the EBA negotiations.

141           As to commuted overtime, we accept Ms Blake’s evidence that Mr Poole and his colleagues would not depart from the existing award position.  Accordingly, that matter, we infer, could not be advanced further at that time.

142           There was a complaint that there was no provision in the agreement for increasing allowances.  However, the agreement was of 18 months’ duration and was replaced by the 1999 agreement, which attracted little or no criticism in evidence or submissions.

143           We do not accept that the CSA represented Fisheries officers poorly or at all in the 1996 EBA negotiations.  In fact, we are satisfied, for the reasons which we have expressed, that they were strongly and professionally represented, particularly by Ms Blake (and see Ms Summerfield’s evidence).

144           Further, having regard to Mr Dasey’s unchallenged evidence, the 1999 EBA provides increases of certain rates in the 1996 EBA being a total salary increase of 7%, and increases in the seagoing allowance of 8.319% and the general hard living allowance from 40c to 43c, whilst monitoring the AFZ hard living allowance.

145           We accept Mr Dasey’s evidence that, in the 1990’s and into this century, the CSA has, on an individual and group basis, devoted a relatively high level of resources to pursuing the interests of Fisheries officer members (of whom there are few).

146           Fisheries officers, by the EBA, are paid at a rate of 9% higher than the current Public Service Award rates.  By 30 June 2001, they will have received 18 –35% in salary increases, with small trade-offs.  The second EBA covers 64 Fisheries officers.

147           There is, in the end, much to be said for the submission that it was not entirely reasonable that Fisheries officers should abandon membership of an organisation which had achieved the salary and other increases which the CSA had in 1996 and which was the occasion for Mr Poole, who had not told his members of Mr Robinson’s advice and efforts, to obtain office in the MSG.  The allowances issue, when boiled down, related to an issue involving 25% of the membership whose allowances in the 1996 EBA had been adequately increased anyway.

CONSTITUTIONAL COVERAGE

148           We wish to deal with the question of constitutional coverage.

149           As we have observed, the CSA, it is common ground, has and has had constitutional coverage of Fisheries officers for many years pursuant to its rules.  What is now contended is that the MSG have constitutional coverage of Fisheries officers pursuant to Rule 3 of its rules, which we have reproduced above.

150           This issue has been comprehensively decided in Merchant Service Guild of Australia, Western Australian Branch, Union of Workers and Fisheries Department of Western Australia and The Civil Service Association of Western Australia Incorporated (Intervener)(FB)(op cit) by the Full Bench of this Commission.  In that case, the Full Bench held that the eligibility rule of the MSG did not extend to Fisheries officers and that the MSG did not have constitutional coverage of them.  That was an appeal by the MSG against a decision by a single Commissioner to dismiss an application by the MSG for an award to cover all Fisheries officers who commanded, were officers of, or who used patrol vessels and other vessels in the course of their employment (with the exception of trainees and Level 1 Fisheries officers).  The CSA was heard as an intervener at first instance and on appeal.

151           This application does not have those exceptions, but it does not, as we understand it, encompass honorary Fisheries officers.

152           At that time, it was common ground that all Fisheries officers held certificates of competence to navigate vessels, such certificates being said to be issued under the Marine Act 1982.  The Full Bench, as the Commissioner at first instance had, construed the eligibility Rule 3, according to the principles laid down in the authorities listed in its reasons, as a legal document in the context of the whole of the rules and giving a liberal interpretation (see page 3648 of that decision).

153           Since it is relevant to the submission that the Fisheries officers are part of a dependent service of the Mercantile Marine and therefore covered by Rule 3, we will summarise what the Full Bench held in that case (see pages 3649-3650):-

 (1) That Fisheries officers held certificates of competency within the meaning of Rule 3.

 (2) That the Mercantile Marine is the vessels of a nation engaged in commerce, the officers and crews of merchant vessels or the shipping collectively employed in commerce.

 (3) That commerce is the interchange of goods or commodities especially on a large scale between different countries (foreign countries) or between different parts of the same country.

 (4) That, as a matter of fact, the employees who are said to be covered by Clause 3, namely Fisheries officers, are employed in a Government department charged by the Parliament by statute to effect, through its officers, the management and conservation of fish in Western Australian waters, and the regulation of fish and fishing to achieve certain objects in eco farming, commercial and recreational fishing and aquaculture.

 (5) That their functions are in supervision, education, management, inspection, liaison and enforcement.

 (6) That police officers and naval officers, as well as Fisheries inspectors, have powers of Fisheries officers in certain circumstances (see s.180 and s.181 of the FRM Act).

 (7) There is no evidence, the Commission held, that they are required to discharge duties in relation to merchant vessels.

  (Note that the only definition of merchant ship in The Germania [1917] AC 375 at 378-379 PC, as follows,

   “A vessel which is described in the claim as a vessel of no value or utility for any commercial purpose, nor adaptable for such purpose, and not any part of the commercial resources of the enemy, is not in any sense a merchant ship.”

  does not appear completely apposite.)

 (8) The Full Bench held that the Commissioner found correctly that Fisheries officers were not, on the evidence, at all engaged in using vessels engaged in commerce, or providing officers or crews for vessels engaged in commerce.  That there was no evidence that Fisheries WA, officers, crews or the subject employees bought, sold, traded or carried goods for that purpose or profit.

 (9) That this was not the function of Fisheries WA nor, on the evidence, of patrol vessels of which Fisheries officers were officers or crew members.

 (10) That Fisheries WA’s activity is and was, on the evidence and the prescription of the FRM Act, plainly governmental and not carried on for profit; nor do they carry on trade or commercial activities.

 (11) That there was no engagement by Fisheries WA and/or Fisheries officers in the interchange of goods or commodities, especially on a large scale between Australia and other countries or different parts of Australia.

 (12) That there was no evidence that Fisheries WA or Fisheries officers, or Fisheries WA vessels or vessels crewed by Fisheries officers, were engaged in commerce.

 (13) That Fisheries officers were not members of a dependent service, as defined (see page 3649), because their service bore and bears no relationship to the Mercantile Marine.

 (14) That Fisheries WA is not a subordinate part, a dependency, an appurtenance of, or subject to the Mercantile Marine.

 (15) That, based on the evidence, the statutory definition and prescription and its prescribed functions and actual operations, the same observation should be made.  We also quote from that decision the following:-

   “The Fisheries Department plays no part nor does it assist the Mercantile Marine in the transport of goods by way of commerce, nor does it assist, facilitate the role of, form an adjunct to or contribute to the function of the Mercantile Marine or its officers and crews.  The function of its employees is prescribed by the FRM Act.  Their role is so defined, and includes, as I have observed, no participation in commerce, as I have defined it above.  Their role bears no relation to the Mercantile Marine or its function or role, as I have defined it above.  They carry out functions prescribed by the Parliament of Western Australia in relation to fish within the waters of that State, and the conservations, administration and supervision of fish and the supervision, etc of those engaged in the fishing industry.  (The FRM Act so prescribes and there is undisputed evidence to that effect.)

   That fisheries officers are, as a matter of evidence, required to operate vessels and to have the relevant certificate of competency is and was of no significance, given the evidence and given the plain words of Rule 3.  It would be surprising if, in fact, it were not the case that such certificates were required and that the duties involved the operation of vessels and boats, since the work of fisheries officers is performed, in part, upon the sea, as a matter of necessity.”

 (16) That Rule 2(11) of the MSG’s rules, if it were to be adverted to, supported this view.

154           It was submitted that because the cost of employing Fisheries officers to carry out their statutory functions in relation to some commercial fisheries, is collected to a substantial extent, does not at all render Fisheries WA part of or dependent upon the Mercantile Marine.

155           How Fisheries WA collects monies or whether it does at all is a matter for it and for the Minister.  In the end, it is a matter for Parliament.  Fisheries WA and the Minister are required to carry out the functions and to advance the objects of the FRM Act as Parliament has prescribed.

156           The fact that some commercial fisheries refund to Fisheries WA some of its costs does not mean that Fisheries WA is dependent upon commercial fisheries so as to make it part of the Mercantile Marine.  That is merely a funding measure as the collection of licensing fees or the imposition of a levy is.  It does not mean, as someone is said to have informed Mr Breeden, that Fisheries officers are part of the service industry to private commercial fisheries or any other persons engaged in pearling, aquaculture, recreational fishing or commercial fishing.

157           There was no evidence that Fisheries WA or Fisheries officers are engaged in trade or commerce, as defined in Merchant Service Guild of Australia, Western Australian Branch, Union of Workers and Fisheries Department of Western Australia and The Civil Service Association of Western Australia Incorporated (Intervener)(FB)(op cit).  Indeed, there was a preponderance of evidence, which we accept, to the contrary.

158           Fisheries officers are persons who are appointed under the FRM Act to carry out, on behalf of the Crown as prescribed by statute by the Parliament of this State, duties in supervision, enforcement, conservation, prosecution, education and all other duties which, by virtue of the law placed on them, achieve the objects of the FRM Act and its other prescriptions.  It is wrong to assert, because Fisheries officers are officers of the Crown, that they provide dependent services to the Western Australian commercial fishing industry.  They are appointed for the purposes of the FRM Act and for no commercial purpose.  They carry out functions and duties lawfully conferred on them.

159           If it were necessary to say so of the evidence of their involvement in land patrols, we would add that the law enforcement duties including coercive powers including arrest, seizure and forfeiture, administration, etc., and the small numbers of officers required to go to sea (which is not surprising, given that fish exist in rivers, lakes and close to the coast) is evidence of how these acts are achieved.  Their assistance to the Commonwealth as regulators and inspectors on naval vessels exemplifies this.  (It is not insignificant that naval and police officers sometimes carry out some Fisheries officer functions.)

160           As was said in evidence and is obvious, naval vessels, larger patrol boats and small boats are not mere platforms (or vehicles) as are four wheel drive vehicles, to enable Fisheries officers to carry out their duties of which there is a plurality.  Their duties are not necessarily even marine, although some are performed at sea, but they are performed in courts, on land, in administration, near the coast, in the ocean, at pearl farms, where there is aquaculture (at sea or inland), where there are rivers and lakes.

161           If it were necessary, there is now evidence of this fact by the fact that small boat handling certificates are sufficient and certificates of competency are not compulsory.

162           If one applies Parker and Son v Coastal District Committee Amalgamated Society of Engineers’ Industrial Association of Workers 6 WAIG 377 (“Parker’s Case”), the common object to be attained is that of the obligations thrust on employer and employee by the FRM Act and that is the “industry” in which they are engaged.

163           There is no evidence which enables this case to be distinguished from the decision of the Full Bench in Merchant Service Guild of Australia, Western Australian Branch, Union of Workers and Fisheries Department of Western Australia and The Civil Service Association of Western Australia Incorporated (Intervener)(FB)(op cit).  Neither Fisheries WA nor Fisheries officers are engaged in the merchant service or any dependent services.  There is no constitutional coverage of Fisheries officers conferred by the MSG rules.  Insofar as it is necessary to find, the same can be said of the AMOU rules.

ABILITY OF ORGANISATIONS TO SERVICE MEMBERS

164           The MSG has represented, according to Mr Fleming’s evidence, a number of public sector employees in Western Australia, including pilots, pilot crews and harbour masters.  It represents six employees of the Waters and Rivers Commission who are subject to the Waters and Rivers Commission (Enterprise Bargaining) Agreement 1996, but did not attend meetings of the EBA SBU of which it was a member.

165           The MSG is a specialist marine industry organisation of employees.

166           Neither Mr Breeden, Mr Poole, nor Ms Ettridge, nor Mr Webber was able to give adequate evidence of the finances, membership, the number of industrial officers employed by the MSG, nor was there evidence of the nature of the membership apart from some reference to pilots, harbour masters, divers and some offshore oil industry employees.

167           The CSA has a large membership of about 12,000, notwithstanding some decreases in membership due, in part, to public service members decreasing and no direct payroll deductions of subscriptions.  Its financial statements reveal a substantial income and assets, there being reserves of several million dollars and subscription income in 2000 of just under 2.5 million dollars.  It is, on the face of it, able to provide adequate representation and advice with ample staff resources.  It has long represented Government and Governmental employees in this State.  There is one organiser to every 1,200 members.  We are satisfied that it is able to provide adequate service to its members.

168           There is ample evidence of service such as taking up the question of Fisheries officers’ stress levels and litigation.  Even Mr Poole admitted that there was little difference in services (see page 113(TR)).

169           Even if, in the past, the CSA did not properly represent Fisheries officers, it is clear that, since before 1995, they have or, if not, we are not satisfied that that is so.  As we have already observed, there is ample evidence, in any event, that Fisheries officers have been competently represented by the CSA.  That is borne out, to some extent, by the MSG not seeking an award in different terms to the 1996 EBA.  We would find, however, for the reasons advanced above, that the CSA achieved all that could reasonably be achieved in the 1996 EBA, and in the 1999 EBA which built on it.

170           We are not able to conclude on the evidence that the MSG can provide adequate services to Fisheries officers or, at least, that they have the ability to provide better service than the CSA.

SUMMARY OF FINDINGS

171           We are satisfied on the evidence and find that the CSA overall and, in particular since 1995, has properly represented Fisheries officers and has achieved for them the best results achievable in the circumstances.  In particular, this is so in relation to the 1996 EBA and also the 1999 EBA.

172           The 1996 EBA, together with the 1999 EBA, achieved a total wage increase of 18%, for example.

173           We are satisfied and find that Ms Blake acted competently and professionally in the 1996 negotiations.  We would add that there has been no criticism, in evidence, of the 1999 EBA which built on that.  Further, the criticisms of the 1996 EBA relate to events which occurred five years ago and this application has taken four years, after those events, to be made.

174           We are also of opinion, notwithstanding some evidence of reduction in membership, that the CSA is a large organisation which does and is able to provide a wide variety of services and which has substantially provided resources to enable that to occur.  It also has the advantage of having a counterpart Federal body, the CPSU, sharing resources and having the advantages flowing from that organisational relationship.

175           It  has not been established to our satisfaction, in the absence of evidence of membership numbers or in the absence of formal statements, that the AMOU or the MSG has the capacity or the continuing capacity to represent Fisheries officers.  It has certainly not been established that either has the capacity to represent Fisheries officers on a more satisfactory basis that the CSA is capable of doing or, more significantly, has already done, given our finding that the CSA has the expertise in the public sector, is properly aware of Fisheries officers’ needs and, particularly in recent times, has adequately represented them.

176           The evidence of Mr Breeden that very minor trade offs for wage increase were contained in the 1996 EBA and the amount of the increase is evidence of that.  We are satisfied and find that the increases in sea going allowances achieved from 1983 to 1995 of 65% were satisfactory.

177           We are satisfied and find that the CSA, at all material times, had and has the capacity to properly and efficiently represent Fisheries officers and has done so.  We are satisfied and find that the same observations apply to the 1999 EBA.    We are not satisfied that the MSG has the capacity to adequately serve and represent the Fisheries officers, or alternatively, do so better than the CSA has done and is capable of doing. 

178           We are satisfied that Fisheries officers are ineligible to join the MSG under its eligibility rule or, because they are ineligible to join the MSG, the AMOU.

179           We are satisfied and find that the EBA of 1996 satisfactorily accommodated Fisheries officers’ requirements insofar as this was capable of being achieved, given that an agreement was being negotiated with an employer, and the employer, it is trite to observe, had some say in the result.

180           We are satisfied and find that there was and remains a significant Fisheries officer preference for membership of the MSG, based on the petition (see exhibit 25B – RJB-1) and other evidence.  However, we are not convinced that it is an entirely informed preference or that it relates to a real knowledge of events and, indeed, of recent events.

181           In particular, there is no evidence that anyone other than Mr Poole knew or knows of Mr Robinson’s efforts to achieve a separate EBA or a separate schedule in an EBA to accommodate Fisheries officers.  Nor, initially, were they informed of Mr Robinson’s suggestion that, if Fisheries officers voted against the EBA in a block, it might well be defeated.  There is no satisfactory explanation why Mr Poole did not pass this information onto the membership.

182           We are satisfied on the evidence that only a small amount of time is spent by Fisheries officers at sea and that only a small number of them engage, as a rule, in that activity.

183           We are satisfied and find that Fisheries officers are not required to hold Competency Certificates.

184           We are satisfied and find that the MSG has no constitutional coverage of Fisheries officers and that the CSA, as was accepted, has.

185           We are satisfied and find that Fisheries officers are officers appointed under the FRM Act and for the sole purpose of carrying out their functions and their powers, not the least in enforcement and prevention, conferred on them by that Act, the Pearling Act and otherwise by the law on behalf of the Crown.  They are not engaged in the merchant marine or any dependent service and their only reason for their existence is an Act of the Parliament of this State.  They are not engaged in commerce nor do they carry out their duties for profit.

186           We are satisfied and find that, if the application were to be granted, the number of organisations for Fisheries WA to deal with would be increased by one, causing increasing and unnecessary complications in employment relations and negotiations.

187           We are not persuaded that any substantial extra time and expense would be caused by the entering into of a separate EBA for Fisheries officers.  We do not, at this time, criticise Fisheries WA for not entering into one.  We are however of the view that it would be prudent and appropriate to recognise the somewhat different activities of Fisheries officers by a separate schedule in any EBA.  We express that view in passing only.

RELEVANT FACTORS

188           We now turn to deal with the relevant factors in the light of the abovementioned findings.

189           In all s.72A applications, the Full Bench must consider the factors relevant to the particular application.  Some factors may be relevant to all or most s.72A applications.  Some may be relevant to few or none.

190           In this case, the following factors are relevant:-

1. Constitutional cover and eligibility.

2. Employer preference.

3. Employee preference.

4. Discouragement of overlapping coverage.

5. The established problem of award and agreement coverage.

6. The interests of the employer.

7. The interests of the employees.

8. The interests of the CSA.

9. The interests of the MSG.

10. The industrial behaviour of the organisation.

11. Community of interest.

12. The opinion of the Australian Council of Trade Unions (hereinafter referred to as “the ACTU”) or the Trades and Labour Council (hereinafter referred as “the TLC”).

13. The ability to service membership.

14. The effect of the orders sought.

15. Existing undertakings or agreements.

16. The interests of the community.

 17. The advancement of the objects of the Act.

 1. Constitutional Coverage

191           We have already found that there is no constitutional coverage by the MSG and that there is constitutional coverage of Fisheries officers by the CSA.  The Full Bench has held that constitutional coverage in s.72A applications should not be lightly brushed aside (see Re an application by AWU and Another(FB)(op cit)).  There should be a compelling reason or compelling reasons why this should occur.  Further, the CSA is a long existing body which represents State Government and Government body employees, including Fisheries officers.

192           There is no compelling reason or reasons why the constitutional coverage of the CSA should be brushed aside.

 2. Employer preference

193           The employer’s preference does not expressly lie with one organisation or the other.  The employer’s preference is that one organisation represent its employees, to enable less expense to be incurred, to obviate negotiating new awards and EBA’s, to enable easier less cumbersome negotiation and, in the case of the CSA, to enable it to deal with an organisation which has negotiated with knowledge and experience in the overtime allowance area, for example, since 1938.

194           In fact, that preference is a preference for the CSA because, apart from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division, WA Branch (hereinafter referred to as “the CEPU”), which represents one employee only, all the rest are represented by the CSA, which is the sole employee organisation which is a party to awards and EBA’s.  Thus, if the orders sought were made, another organisation would, apart from the CSA and the CEPU, represent employees of Fisheries WA.

195           It is undesirable, in this case, that this be permitted if there is no good reason, since the disadvantages for the employer and, indeed, employees are manifest on the evidence.  We are not persuaded that there is good reason.  Indeed, we are persuaded that all of those factors and the objects of the Act are advanced by or lead to the conclusion that the CSA should retain its existing coverage.

 3. Employee Preference

196           The employee preference, as evidenced by the petition (exhibit 4 – LP-12 and exhibit 25B – RJB-1) and by the resolution passed in 1996 and the subsequent resignation of a large number of Fisheries officers from the CSA in April 1996 after a ballot of employees approving the 1996 EBA.

197           There was no evidence, from what we might call rank and file Fisheries officers.  Further, what evidence there is suggests that there has been no justification for the ill will directed to the CSA since what was achievable by it has been achieved.  The increases in sea going allowances were, as we have found, negotiated by Mr Poole and included in the 1996 EBA which, even he agreed, was the best achievable at the time.

198           Further, as we have accepted, there was no way in which the CSA could have achieved a separate EBA or even a separate schedule in the concluded EBA to cover Fisheries officers.  The employer would not and did not agree.  It maintained this stance despite Mr Robinson’s request to change the mind of the Acting Chief Executive Officer.  Accordingly, it was wrong to blame the CSA for this state of affairs.  Indeed, the resignations might not have occurred had Mr Poole advised the other Fisheries officers, including such influential members as Mr Breeden, of Mr Robinson’s efforts.

199           Further, the passing of the EBA might have been blocked had Mr Poole taken Mr Robinson’s advice, informed his members, and organised a block vote against the EBA.  That would have deprived them, of course, of the significant increases which were achieved.  However, the preference cannot, in the light of those circumstances, be said to be a properly informed one.

200           Alternatively, the approbation of the EBA or its lack of disapproval through the ballot box by Fisheries officers constitutes sufficient evidence of Fisheries officers’ preference, even if the preference were an informed one, which we are not persuaded that it is.  We are not persuaded to the contrary, despite the numbers who signed the petition.

201           There is no evidence of any campaigning by Mr Poole or other Fisheries officers against the EBA which Mr Poole had assisted to negotiate.

202           In any event, the preference of employees is not necessarily a determining factor in an application such as this (see Re an application by AWU and Another (FB)(op cit)).

203           In this case, there is nothing to persuade the Full Bench that such a preference, having regard to the other factors and for those reasons, should be a determining factor.

 4. Overlapping Coverage

204           There would not be overlapping coverage if orders were made to grant coverage to the MSG, provided that both organisations’ eligibility rules were amended to accommodate the situation.

 5. Established Coverage and Industrial Coverage

205           There is established exclusive constitutional and industrial coverage by Fisheries officers which has been interrupted by an unauthorised coverage of Fisheries officers for less than two years by the MSG.  That fact plainly militates against the applicant in this case.

206           There is established CSA industrial coverage of Fisheries officers by award and industrial agreements going back many years and achieved through the efforts of the CSA.  There has been none by the MSG.  The unnecessary disruption in this case, caused by the need to negotiate new awards or EBA’s with an organisation new in the area would not occur if the application were dismissed.

207           It is plain that it is to the benefit of all parties, including the CSA, its members and the employer, that that be maintained.  In particular, the CSA would remain, for the benefit of its members and the employer, a party to awards and agreements which it has assisted to develop over a period of years.

 6. Interests of the Employer

208           The interests of the employer are, as we find, clearly best served by continuous representation by the long standing representation organisation, the CSA.  That continues stability and avoids the disadvantage of having employees represented by three organisations instead of two.

209           In those circumstances, it is also in the interests of a small group of employees in one “enterprise”, Fisheries WA, that their representation not be unnecessarily split.

 7. The Interest of the Employees

210           The interests of the employees are plainly served by an employee organisation which is experienced in their representation and knowledgeable about their employment and conditions, which has a satisfactory relationship with the employer, and which ingenuously represents its members’ interests, and strives to ensure that the employees have the fairest and best conditions of employment obtainable by fair and lawful means, given that the employer has a right to conduct its enterprise fairly, lawfully, efficiently and for the maximum result achievable by such means.

211           In this case, the CSA has done what, overall, it could achieve and which it was capable of achieving.  Further, as we have found, the CSA has the financial and organisational capacity to and has properly represented Fisheries officers.

212           The MSG is, to some extent, an unknown quantity in capacity, expertise, membership numbers and adequate financial resources.  There was no evidence that Fisheries officers knew much about this capacity.  Accordingly, the preference, while expressed, is not well informed.

213           Further, it is not so sufficient strong a factor, on its own, to persuade the Full Bench to grant the application or brush aside the interests of the employer, established coverage, and constitutional coverage.  Indeed, on the evidence of performance, coverage and capacity, we are persuaded that the interests of the employees, both Fisheries officers and others, is best served by the CSA representing Fisheries officers.  The CSA is the organisation which best fits the criteria expressed in paragraph 209 hereof.

 8. The Interests of the CSA

214           These are served best by not losing members when the CSA has, for a long time, and overall, efficiently, certainly in the 1990’s, served Fisheries officers well.

 9. The Interests of the MSG

215           These are best served by the acquisition of over 80 new members, but for the reasons which we advance and have already advanced, those interests are cancelled out by the interests of the CSA, the employer and other individuals.

 10. Industrial Behaviour

 (a) The CSA

  There is no evidence of any complaint of industrial behaviour against the CSA by the MSG or the employer.  Indeed, all of the evidence is evidence of satisfactory behaviour.

 (b) The MSG

  The MSG’s industrial behaviour, in purporting to cover members who, almost manifestly, are not within its constitutional coverage, although a minor episode, deserves criticism.

 (c) Fisheries WA

  The industrial behaviour of Fisheries WA is within the limits of an employer properly negotiating matters without intransigence or, if that is not the case, we are not satisfied otherwise on the evidence before me.  It might have been more conducive to settlement if a separate schedule for Fisheries officers in the 1996 EBA was agreed to, but we reach no conclusion on that point.

 (d) FOSA

  As a de facto organisation, FOSA made too much of an issue, namely the seagoing allowances (as we generally call them) which indirectly and correctly affect 21 officers and not the other 67 Fisheries officers, particularly since that part of allowance was not neglected in the 1996 EBA nor from 1983 to 1995.

 11. Community of Interest

216           The CSA is a body which specialises and, by its eligibility rules, represents and has done so for many years Government and Government body officers in this State.  Fisheries officers, as we have found, are officers employed to carry out regulatory, administrative, educational, advisory and enforcement functions on behalf of the Crown in relation to fish, fisheries, commercial fishing, recreational fishing and aquaculture.  There are not engaged in maritime activity and the bulk of their work is done other than at sea. 

217           Because of a lack of evidence, it is not clear what the practical profile of the MSG is.  Suffice it to say that it covers persons employed in the mercantile marine which is a defined specific area of endeavour far removed from the work of Government Fisheries officers.  We can find no community of interest.

 12. ACTU and TLC

218           There is no evidence of opinion as to coverage from the ACTU or TLC.

 13. Ability to Service Membership

219           There is insufficient evidence to enable the Full Bench to conclude, on the evidence, that the MSG has the capacity, financially or in staff, to service the Fisheries officers or, at the very least, to serve them better than the CSA does.  The attempt to obtain an award by the MSG was confined to an award which sought no better conditions than those already contained in the 1996 EBA.

 14. The Effect of the Orders Sought

220           If the orders sought were made, they would deprive the CSA, without good reason and, indeed, when it has done nothing to deserve it, of members, would introduce another employee organisation unnecessarily to the workplace, would not be, in fact, in the best interests of Fisheries officers, be contrary to the employer’s preference and, without good reason, disturb long standing industrial and constitutional coverage, with the attendant potentially disadvantageous consequences.

221           It has not been established, in the face of those detrimental results, that the orders should be made.

15. No Existing Undertaking or Agreement

222           There is no existing undertaking, agreement or arrangement as to membership between the MSG and the CSA in relation to the coverage or membership of Fisheries officers.

 16. The Interests of the Community

223           These are best served, in our opinion, by the fulfilment of the objects of the Act by this Commission in its orders.  We quote what the Full Bench, in its unanimous reasons for decision in Re an application by the AFMEPKIU (FB)(op cit) at page 4636 said:-

  “These are served, in our opinion, by the fulfilment of the objects of the Act, by this Commission in its orders.  We have already adverted to the unlawful participation in industrial action by the AMWU and our finding that the probability is that this will not recur.  The interests of the community in this case are served if the employer, Inghams, is able to conduct its business efficiently and without unjustified disruption, if the employees achieve just and fair terms and conditions of employment, if there is peace and co-operation in the workplace, if disputes can be readily, fairly and lawfully resolved and if the employees can be represented by an efficient, vigorous organisation which can help the achievement of those ends.  It will be clear from our findings that the AMWU, which has the majority of members’ preference, will be more likely to be an instrument of achieving that object, despite its misconduct and shortcomings, than the FPU.”

224           In this case, the preponderance of the evidence, for the reasons which we have expressed, is that the interests of the community would best be served if the application were dismissed.

 17. The Objects of the Act

 (a) S.6(a) of the Act provides as follows:-

   “To promote goodwill in industry”

  In this case, having regard to the CSA’s proven record in the area and the fact that there is no evidence that goodwill has not been obtained, there is no reason to find that making the orders would improve the relationship between organisations and/or the employer.  Further, because of some of Mr Poole’s views, the granting of this application may not promote goodwill in the industry or encourage the prevention and settlement of industrial disputes in terms of object (b).  Indeed, the introduction of an extra organisation might not.

 (b) S.6(b) of the Act provides as follows:-

   “(b) to encourage, and provide means for, conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes”

  Dismissing the application would advance that object by encouraging parties who have a record of good will, given that differences of stance, position or opinion are not necessarily always evidence of bad will.

 (c) S.6(c) of the Act provides as follows:-

   “(c) to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality”

  My observations as to s.6(b) of the Act supra apply.  Further, there exists a well established set of awards and agreements to which Fisheries WA and the CSA are parties.  To disturb this would, in our opinion, be to unnecessarily disturb a history of industrial goodwill insofar, at best, as it is evidenced by the lack of evidence of harmful disputation.             

 (d) S.6(d) of the Act provides as follows:-

   “(d) to provide for the observance and enforcement of agreements and awards made for the prevention or settlement of industrial disputes”

  Such means exist already in awards, orders and the relationship between the CSA and Fisheries WA.  It has not been established that any change would improve the situation.

 (e) S.6(e) of the Act provides as follows:-

   “(e) to encourage the formation of representative organizations of employers and employees and their registration under this Act and to discourage, so far as practicable, overlapping of eligibility for membership of such organizations”

  The question of overlapping would not arise if the President made the appropriate orders pursuant to s.72A(6) of the Act.  However, the encouragement of the formation of representative organisations of employers and employees is negatived if, without good reason, the Full Bench permits members to depart from coverage by an organisation without good reason.  To so act would be contrary to that object.  Obviously, to make such an order renders the CSA less representative.  There is no good reason to make such an order in this case.

 (f) S.6(f) of the Act provides as follows:-

  “(f) to encourage the democratic control of organizations so registered and the full participation by members of such an organization in the affairs of the organization”

  Again, to permit the loss of coverage of members from an organisation without good reason is not to encourage their full participation in the organisation but to allow them, sometimes contrary to the will of their fellow members, not to participate because of a disagreement.  That is the case here, where there was no oppression of a minority by a majority.

 (f) S.6(g) of the Act provides as follows:-

  “(g) to encourage persons, organizations and authorities involved in, or performing functions with respect to, the conduct of industrial relations under the laws of the State to communicate, consult and co‑operate with persons, organizations and authorities involved in, or performing functions with respect to, the conduct or regulation of industrial relations under the laws of the Commonwealth.”

  This object is not achieved by the making of the orders sought because the CSA has a counterpart Federal body.

225           We are, for those reasons, satisfied that all of the relevant objects of the Act would be achieved by dismissing the application.  Alternatively, the applicant has clearly not established that they would be so advanced.

226           We are also satisfied that all of those relevant factors, as we have considered them, direct the Full Bench to a dismissal of the application.

CONCLUSIONS

227           The applicant did not establish that the order should not be made when it carried the onus of so establishing.

228           Each s.72A application must be decided on its individual facts and circumstances and with regard to the factors relevant to such application.

229           We have considered all of the evidence, oral and documentary, and all of the submissions.  We are satisfied, for the reasons which we have expressed, that the application should be dismissed, the equity, good conscience and the substantial merits of the case, for those reasons, lying with the CSA and with the employer.

230           Even if that were not so, again for the reasons which we have expressed, they certainly have not been established to lie with the applicant.

231           We would dismiss the application.

Order accordingly