Application by the Community and Public Sector Union
[2010] FWA 3492
•25 JUNE 2010
Note: An appeal pursuant to s.604 (C2010/4292) was lodged against this decision - refer to Full Bench decision dated 10 November 2010 [[2010] FWAFB 8678] for result of appeal.
[2010] FWA 3492 |
|
DECISION |
Workplace Relations Act 1996
s.158(1) RAO Schedule - Application for alteration of eligibility rules
Application by the Community and Public Sector Union
(D2009/110)
VICE PRESIDENT WATSON | SYDNEY, 25 JUNE 2010 |
Application for alteration of the organisation’s eligibility rules – coverage of employees in private correctional facilities in NSW other than Junee Correctional Centre – Workplace Relations Act 1996 Schedule 1 s 158 – Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Schedule 2 item 11 Schedule 18 item 11 – Workplace Relations (Registered and Accountability of Organisations) Regulations 2003 regulations 122.
Introduction
[1] This decision concerns an application by the Community and Public Sector Union (CPSU) for consent to the alternation of the eligibility rules of the organisation pursuant to s 158 of Schedule 1 (the RAO Schedule) of the Workplace Relations Act 1996 (the WR Act).
[2] The application was lodged on 18 June 2009. In accordance with Regulation 122 of the Workplace Relations (Registered and Accountability of Organisations) Regulations 2003 (the RAO Regulations), a notice was published in the Government Gazette on 5 August 2009 stating the application by the CPSU had been received and any notice of objection was to be lodged no later than 35 days after the notice was published. The opportunity to file an objection closed 9 September 2009. No objections had been filed by this date.
[3] On 25 September 2009 the Liquor, Hospitality and Miscellaneous Union (LHMU) lodged a notice of objection to the CPSU’s application, some 16 days late.
[4] The matter was listed for hearing 23 October 2009. The LHMU sought an extension of time for leave to extend the time for filing their objection. The CPSU opposed the extension being granted.
[5] On 30 November 2009 I issued a decision that the Australian Industrial Relations Commission (AIRC) lacked the power to grant the LHMU’s application. 1 An appeal against that decision was dismissed by a Full Bench of Fair Work Australia (FWA) on 22 April 2010.2
Applicable Legislation
[6] The application was lodged prior to the WR Act repeal day (1 July 2009) and the relevant conduct to which the application relates occurred prior to that day. In accordance with item 11 of Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) the WR Act continues to govern the application.
[7] The application was lodged in the AIRC. In accordance with item 11 of Schedule 18 to the Transitional Act, the powers, functions and duties of the AIRC are now to be exercised by FWA.
[8] Section 158 of the RAO Schedule relevantly provides:
“158 Change of name or alteration of eligibility rules of organisation
(1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless the Commission consents to the change or alteration.
(2) The Commission may consent to a change or alteration in whole or part, but must not consent unless the Commission is satisfied that the change or alteration has been made under the rules of the organisation.
…
(4) The Commission must not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the Commission, another organisation:
(a) to which those persons could more conveniently belong; and
(b) that would more effectively represent those members.
(5) However, subsection (4) does not apply if the Commission accepts an undertaking from the organisation seeking the alteration that the Commission considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.
(6) The Commission may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under this Schedule and the Workplace Relations Act the industrial interests of a particular class or group of persons.
(7) The Commission may also refuse to consent to an alteration of the eligibility rules of an organisation if it:
(a) is satisfied that the alteration would change the effect of any order made by the Commission under section 133 about the right of the organisation to represent under this Schedule and the Workplace Relations Actthe industrial interests of a particular class or group of employees; and
(b) considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.
(8) Subsections (6) and (7) do not limit the grounds on which the Commission may refuse to consent to an alteration of the eligibility rules of an organisation.
(9) Where the Commission consents, under subsection (1), to a change or alteration, the change or alteration takes effect on:
(a) where a date is specified in the consent—that date; or
(b) in any other case—the day of the consent.
(10) This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:
(a) determined by the Commission under subsection 163(7); or
(b) proposed to be made for the purposes of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or
(c) proposed to be made for the purposes of a withdrawal from amalgamation under Part 3 of Chapter 3.”
The application
[9] The application seeks consent to two alterations to the organisation’s eligibility rules. The first to the New South Wales clause of the eligibility rule is to insert a new sub-paragraph (s) in clause (D) in Section I of Part II of Rule 2 in Chapter A—General in the following terms:
“(s) Persons employed or engaged to work in:
(i) any private correctional facility, other than the Junee Correctional Centre; and
(ii) prisoner transport, including the provision of security escort services to and from correctional facilities, court and/or hospitals
Provided that nothing in this sub-paragraph will render teachers or nurses eligible for membership of the Union.
Provided further that nothing in this sub-paragraph will render employees eligible for membership of the Union who are:
(a) not directly employed or engaged by operators of correctional facilities or prisoner transport activities; and
(b) who are employed, or who become employed, performing either construction, refurbishment or installation work in private prisons or the maintenance or repair of private prison transport vehicles.”
[10] The second to the NSW clause of the description of industry rule is to insert a new sub-paragraph (r) in clause (B) in Section I of Part II of Rule 3 in Chapter A—General in the following terms:
“(r) Persons employed or engaged to work in:
(i) any private correctional facility, other than the Junee Correctional Centre; and
(ii) prisoner transport, including the provision of security escort services to and from correctional facilities, court and/or hospitals
Provided that nothing in this sub-paragraph will render teachers or nurses eligible for membership of the Union.
Provided further that nothing in this sub-paragraph will render employees eligible for membership of the Union who are:
(a) not directly employed or engaged by operators of correctional facilities or prisoner transport activities; and
(b) who are employed, or who become employed, performing either construction, refurbishment or installation work in private prisons or the maintenance or repair of private prison transport vehicles.”
[11] The purpose of the alteration is to enable the CPSU to continue to represent the industrial interests of employees at correctional facilities consequent upon the privatisation of NSW government prisons (other than the Junee Correctional Centre).
Background
[12] A detailed affidavit by Mr David Carey, the Federal Secretary of the State Public Services Federation (SPSF) Group of the CPSU contains the evidence relied on by the CPSU.
[13] Three unions represent correctional staff in Australian prisons - the CPSU, the Western Australian Prison Officers Union (WAPOU) and the LHMU. The coverage of the WAPOU is confined to Western Australia. The LHMU’s eligibility rule covers employees at correctional facilities in Queensland, South Australia, NSW, Victoria and WA. In NSW the coverage is confined to the private facility at Junee.
[14] I propose to consider the requirements for consent on the basis of the evidence provided by Mr Carey.
Compliance with rules (s 158(2))
[15] Mr Carey has given details of the process of amending the rules of the CPSU in a declaration and his affidavit. The rule changes were made by the National Officers Committee and approved by postal ballots of the National Officers Committee (19 May 2009), the PSU Group Governing Council (17 June 2009) and the SPSF Group Federal Council (28 April 2009).
[16] I am satisfied on the material contained in the application and supporting documentation that the rule changes were made in accordance with the rules of the CPSU.
Conveniently belong (s 158(4))
[17] The CPSU through its various branches, sub-branches and State associated bodies has represented correctional staff at NSW prisons for many years. Mr Carey asserts that in March 2009 its membership within the NSW Department of Corrective Services was approximately 5600. Members include those employed as administrative and clerical officers, correctional officers, and professional, supervisory and managerial employees. The CPSU has similar coverage and membership with respect to prisons in other States.
[18] Having regard to the current eligibility provisions of the various organisations and the history of representation of the CPSU at prisons in NSW, I am satisfied that there is no other organisation to which persons who would be eligible for membership because of the application could more conveniently belong. I am also satisfied that no other organisation would more effectively represent the members employed at NSW private prisons.
Other matters
[19] I am satisfied that no other grounds exist for declining to give consent to the rule changes.
Conclusions
[20] It follows from the findings I have made above that the CPSU has established a case for consent to the rule changes. The Tribunal consents to the rule changes. The rule changes will have effect from 5 July 2010.
VICE PRESIDENT WATSON
1 Application by the Community and Public Sector Union [2009] AIRC 935
2 Liquor, Hospitality and Miscellaneous Union v CPSU, the Community and Public Sector Union[2010] FWAFB 3260
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