Application by Australian Rail, Tram and Bus Industry Union

[2021] FWC 5979

[2021] FWC 5979

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act—Rules of organisations

Application by Australian Rail, Tram and Bus Industry Union
(D2021/3)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 23 SEPTEMBER 2021

Application by RTBU for consent to alter eligibility rules - privatisation of public bus services in New South Wales - no remaining objections - consent to proposed rule alteration.

[1] The Australian Rail, Tram and Bus Industry Union (RTBU) has applied for consent from the Fair Work Commission (Commission) to alter its eligibility rules in accordance with s 158 of the Fair Work (Registered Organisations) Act 2009 (RO Act) (Application).

[2] The Application follows an earlier application which I granted in part. 1

Proposed amendments to the RTBU’s eligibility rules

[3] The RTBU wishes to alter its eligibility rules as follows:

“4 – ELIGIBILITY FOR MEMBERSHIP

(1) The following shall be eligible to become members of the Union:-

(i) permanent or casual employees, including persons training for employment, in the tramway services of Australia and motor omnibus services and trolley bus services and light rail services run in conjunction therewith or controlled thereby, and also employees of the State Transit Authority of New South Wales, the Public Transport Corporation of Victoria, the State Transport Authority of South Australia, the Metropolitan Transport Trust Tasmania, the Brisbane City Council and the Metropolitan (Perth) Passenger Transport Trust and any Commonwealth, State or Local Government, in tramway or motor omnibus or trolley bus or light rail services together with such other persons whether employed in the industry or not who at any time when training for employment or working in the tramway, trolley bus, motor omnibus or light rail services have been admitted as members and to continue that membership.

Provided nothing in this paragraph (i) shall permit the Union to enrolled as members persons employed in the States of Victoria, Queensland, Tasmania and Perth as clerks, ticket examiners, depot starters, assistant depot starters or inspectors; and

(ii) an unlimited number of employees employed in or in connection with the Railway and Tramway industry or industry is governed and controlled directly by the Governments of the Commonwealth of Australia and the States of Queensland, New South Wales, Victoria, South Australia, Western Australia and Tasmania, or indirectly by such Governments, or any of them through Commissioners, Boards, Managers, Directors, or other means, and also all railway systems in the Commonwealth of Australia owned and controlled by private persons or companies, and the Secretary and/or any employee of the Railway Institute established by or under the direction or with the approval of the Commissioners, Boards, Managers, Directors or other controlling authorities of any of the railway systems in the Commonwealth of Australia; and

(a) an unlimited number of railway employees (adults or junior, male or female) who become and remain members of the Union and persons who while being members of the Union retire from the railway industry upon the ground of ill health or having reached retiring age and whose membership has not been terminated pursuant to this Rules;

(b) for the purposes of sub–paragraph (iii)(a) above, “Employee” or “Railway Employee” means any officer or employee employed by any Railway Department and also any officer or employee employed in any railway system in the Commonwealth owned or controlled by private persons or corporations other than officers in a supervisory position employed at an annual rate of salary and shall include the Secretary or any employee of any Railway Institute established by or under the direction or with the approval of the Railway Commissioner or other controlling authority of any railway system in the Commonwealth and “Railway Industry” has a corresponding meaning; and

(iii) an unlimited number of persons employed in the Railway Train Running Industry including Locomotive cabdrivers, Electric Train cabdrivers, Fireman, Electric Helpers, Chargemen and Cleaners, Packers and Trimmers, Wash–out Men, Wash–out Men’s Assistants, Motor Drivers and any other worker engaged in and about the working or management of or incidental to any Steam locomotive or Motor driven by electricity or other power used on any Railway;

provided that, except as provided in Sub-Rules 4(3), 12(3) and 12(4), a person shall only be eligible to remain as a member while he/she continues to meet one or other of the eligibility criteria specified in the foregoing paragraphs.

(2) Each of the paragraphs numbered (i) to (iv) in Sub-Rule 4(1) shall be interpreted separately. Accordingly, each paragraph shall neither limit nor be limited by the provisions of any other paragraph.

(3) Notwithstanding the proviso to Sub-Rule 4(1), a person who is admitted to membership pursuant to the provisions of Rule 10 and who subsequently elected as a paid Office Bearer of the Union or becomes an employee of the Union, shall be entitled to remain as a member while holding such Office or engaged in such employment.

(4) Without in any way limiting or being limited by the provisions of sub rules (1), (2) and (3) inclusive, the following persons shall be eligible for membership of the Union:

(i) NOT CONSENTED TO ([2020] FWC 1489)

(ii) All employees of the State Transit Authority of New South Wales and any successor, assignee or transmittee, whether direct or indirect, of the business and/or the roles, functions or responsibilities (or any part thereof) of the State Transit Authority of New South Wales; and

(iii) All employees of Keolis Downer Hunter Pty Ltd and any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Keolis Downer Hunter Pty Ltd where such employees are employed in or in connection with the provision of bus services in the area identified as Outer Metropolitan Bus Contract Region 5 – Newcastle otherwise known as State Transit Region 5 Newcastle; and

(iv) NOT CONSENTED TO ([2020] FWC 1489)

(v) NOT CONSENTED TO ([2020] FWC 1489)

(vi) All employees of Transit Systems West Services Pty Ltd and any successor, assignee or transmittee, whether direct or indirect of the business (or any part thereof) of Transit Systems West Services Pty Ltd where such employees are employed in or in connection with the provision of bus services in the area identified as Sydney Metropolitan Bus Service Contract 6 otherwise known as State Transit Region 6.

(5) Without in any way limiting or being limited by the provisions of Sub-Rules 4 (1), (2), (3) and (4), inclusive the following persons shall be eligible for membership of the Union:

(i) any person employed to drive or otherwise operate a bus, or chaperone passengers on a bus, in connection with the provision of a public passenger service (howsoever described) from a depot in an area, or any part of an area, in NSW which was, as at 1 January 2016, within the following bus service contract regions (as they were then):

i. Outer Sydney Metropolitan Bus Service Contract Region 5;
ii. Sydney Metropolitan Bus Service Contract Region 6;
iii. Sydney Metropolitan Bus Service Contract Region 7;
iv. Sydney Metropolitan Bus Service Contract Region 8; or
v. Sydney Metropolitan Bus Service Contract Region 9.

(ii) additionally, in the Bus Service Contract Regions described in paragraph (i) of sub-rule 5 of this Rule, any person employed:

i. to be trained to be an operator of such a bus;
ii. to clean such a bus;
iii. to supervise a yard of such buses;
iv. to drive buses in a yard of such buses;
v. to provide customer service from or in connection with such buses;
vi. as a sign-on clerk or roster clerk or other clerical or administrative employee located at or employed in connection with a yard of such buses, or
vii. to maintain, refuel and service such buses.”

[4] Underlining is used in rule 4(5) to indicate the proposed amendments. The words which have been struck through in rule 4(5)(i)ii are not pressed as part of the proposed amendments. The words in bold and double underline in rule 4(5)(ii) are additional words which were inserted as a result of the decision not to press rule 4(5)(i)ii. Those words were inserted after the proposed amendment was approved in accordance with the rules of the RTBU.

Reasons for proposed alteration to RTBU’s eligibility rules

[5] The effect of the variation is to permit the RTBU to uncontroversially enrol and represent all persons who are employed by private sector bus operators in certain roles, principally bus drivers, where those operators have been awarded contracts to run bus services in ‘regions’ currently or historically operated by the New South Wales State Government. The privatisation model is being implemented in stages in passenger bus operations across the state.

[6] The RTBU has unchallenged coverage of these employees when engaged by the Crown. It is also entitled to continue to represent members whose employment transfers to the new operator. There is controversy as to whether it can represent new employees i.e. persons employed for the first time by the new operator. Presently this leads to an artificial situation in the workplace where some persons can join the RTBU if they wish while others arguably cannot, notwithstanding the fact that they work for the same employer doing the same job. The rule change is intended to resolve this.

[7] The Transport Workers’ Union (TWU) initially objected to the RTBU’s proposed rule change. That objection has been resolved by agreement. As a result of that agreement, the RTBU now seeks consent only in part to its proposed rule change. 2

[8] No other objections have been made to the proposed rule change.

Consent in part

[9] Section 158(2) of the RO Act permits the Commission to consent to a change “in whole or in part”. This language has persisted from s.204(2) of the Workplace Relations Act 1996 (Cth), and indeed the Industrial Relations Act 1998 (Cth) and the Conciliation and Arbitration Act 1904 (Cth) before it.

[10] The ability to grant consent in part is not limited to a ‘blue pencil’ test i.e. “the physical deletion or striking out of parts of the proposed alteration”. 3 The Commission may, if it considers it appropriate, introduce new words into a proposed rule in order to give effect to a partial consent.4 The power to amend is, however, strictly confined in that it can only be used to exclude persons who would otherwise have been eligible under the rules as proposed.5

[11] In this matter, the proposed alteration to rule 4(5)(i)ii simply removes part of the text, such that persons in Region 6 are excluded. Given they would otherwise be expressly included and are not otherwise caught by the text of the change, this falls within the scope of the Commission’s power to grant a partial consent. The proposed alteration to the chapeau to rule 4(5)(ii) simply flows from, and ensures consistency with, the alteration to rule 4(5)(i)ii. The new words in the chapeau to rule 4(5)(ii) give effect to the partial consent to rule 4(5)(i)ii. As a result, this proposed alteration also falls within the scope of the Commission’s power to grant a partial consent.

Section 158 requirements

[12] The requirements of s 158 of the RO Act must be considered in light of the partial consent now sought.

[13] By reason of the evidence given by Mr Mark Diamond in his declaration made on 29 March 2021, I am satisfied that the changes have been made in accordance with the rules of the RTBU: s 158(2) of the RO Act.

[14] There is no evidentiary material before the Commission to suggest that that there is another organisation to which any person who would become eligible to join the RTBU as a result of the proposed change could more conveniently belong, and which would more effectively represent such persons.

[15] I am satisfied that there is not, in relation to persons who would be eligible for membership of the RTBU because of the alteration, another organisation to which those persons could more conveniently belong and that would more effectively represent those persons: s 158(4) of the RO Act.

[16] Section 158(6) of the RO Act confers on the Commission a discretion to refuse consent where the rule alteration would contravene an agreement or understanding between the applicant union and another registered organisation. The partial consent is consistent with the only agreement in evidence before the Commission, with the result that no such concern arises.

[17] Section 158(7) of the RO Act is not engaged in relation to the Application.

[18] Finally, as to the general discretion conferred by s 158(2) and confirmed by s 158(8) of the RO Act, there is no matter which would otherwise warrant the Application being refused.

Conclusion

[19] In all the circumstances and for the reasons set out above, I exercise my discretion to grant consent, in part (as sought in paragraph [3] above), to the RTBU’s rule alteration.

[20] In accordance with s 158(9) of the RO Act, the Commission’s consent to the Application will take effect on 30 September 2021.

DEPUTY PRESIDENT

Appearances:

Ms L Saunders, Counsel, with Mr P Pasfield, Solicitor, on behalf of the Applicant

Ms A Owens-Strauss, Legal Officer of the TWU, on behalf of the TWU

Hearing details:

2021.

Newcastle (by telephone):

September 23.

<PR734279>

 1   See [2020] FWC 1489 and the appeal therefrom at [2020] FWCFB 3200

 2   Statement of Mark Diamond dated 9 September 2021

 3   National Tertiary Education Union v Community and Public Sector Union (1999) IR 365 at [169]

 4   ResMed v AMWU [2016] FWCFB 22

 5   Re Federated Miscellaneous Workers Union of Australia (1974) 157 CAR 623 at 627-628

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