Australian Health Practitioner Regulation Agency

[2015] FWCA 4268

[2015] FWCA 4268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Australian Health Practitioner Regulation Agency
(AG2015/2311)

AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY ENTERPRISE AGREEMENT (QLD) 2014-2016

State and Territory government administration
COMMISSIONER WILSON	MELBOURNE, 24 JUNE 2015

Application for approval of the Australian Health Practitioner Regulation Agency Enterprise Agreement (QLD) 2014-2016.

[1] This decision concerns an application for the approval of the Australian Health Practitioner Regulation Agency Enterprise Agreement (QLD) 2014-2016 (the Agreement), and an objection made by one union to the Agreement covering another.

[2] An application for approval of the Agreement has been made by the Australian Health Practitioner Regulation Agency (AHPRA) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single-enterprise agreement.

[3] There are two issues for determination in this decision;

● whether the Agreement should be approved because it meets the requirements of the Act, as set out in Chapter 2, Part 2-4; and

● whether the Agreement should “cover”, pursuant to s.183 of the Act, the Australian Municipal, Administrative, Clerical and Services Union (the ASU), with it being noted that this question arises since the Community and Public Sector Union - State Public Services Federation Group (the CPSU) objects to such course.

[4] In this decision, for the detailed reasons given, I find firstly that the Agreement should be approved by me, and that secondly, the Agreement should cover the ASU, as well as three other unions; the CPSU, the Queensland Nurses’ Union of Employees (the QNU) and the Australian Nursing and Midwifery Federation (the ANMF).

Approval

[5] The matters that must be taken into account by the Commission in considering the approval of an enterprise agreement are set out in Division 4 of Chapter 2, Part 2-4 of the Fair Work Act 2009

[6] The evidence of which I take account in relation to the Agreement’s approval include the content of the Agreement itself; the supporting material contained within AHPRA’s application form (the Form F16) and its Employer's Declaration in support of Application (the Form F17); and the material submitted by several unions in their declarations about the application to the Commission. The union declarations were received from the ASU, ANMF, the QNU and the CPSU.

[7] In addition, I have considered the submissions and evidence filed by the CPSU and ASU in relation to the coverage objection question.

[8] In relation to the union positions, the ASU, ANMF and the QNU each support approval of the Agreement. However, the statutory declaration filed by the CPSU states the union;

“supports the approval of the Agreement by the Fair Work Commission save and except for clauses 2.3(b) and 3.19 of the Agreement to the extent that it asserts that the Agreement applies to and covers the Australian Municipal, Administrative, Clerical and Services Union (ASU).”

[9] Other than this matter of opposition to approval, no other aspect of the material provided by any party indicated opposition to approval or that, in the view of the submitting party, that approval by the Commission could not or should not occur for any reason.

[10] Accordingly, the Commission’s consideration turns to whether the application meets the statutory criteria for the approval of an agreement.

[11] In this regard, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met;

● In relation to s.186 (Approval - general requirements) and s.188 (Genuinely agreed);

• The evidence before the Commission discloses that employees genuinely agreed to the making of the agreement; that its terms do not contravene s.55 of the Act (dealing with the interaction between agreements and the National Employment Standards); and that the agreement passes the better off overall test.



• To the extent that the agreement does not cover all of AHPRA’s employees in Queensland, and noting that the definition of “employee” within clause 3.6 limits the coverage of the Agreement to employee’s whose work falls within the salary classification structure contained within the agreement, I am also satisfied that the group of employees to be covered by the agreement was fairly chosen.



• I am also satisfied that the agreement does not include any unlawful terms (s.186(4)) and that it does not include any designated outworker terms s.186(4A)).



• I am also satisfied that the Agreement specifies 30 June 2016 as its nominal expiry date, which is a date within four years after the date on which the Commission will approve the agreement (s.186(5)).

● In relation to s.187 (approval - additional requirements);

• I am satisfied that approval of the agreement is not inconsistent with the requirements of good faith bargaining (s.187(2)).



• In relation to the requirement within s.187(4) for the Commission to have regard to particular kinds of employees prescribed within subdivision E of Chapter 2, Part 2 – 4, Division 4, I am satisfied that the Agreement does not refer to shift workers, piece workers, to school-based apprentices or trainees, or to outworkers, and so special consideration in respect of approval is not required of those matters.

[12] None of the submissions of the CPSU or ASU in relation to the former’s coverage objection put forward substantive arguments for the Commission to refuse approval.

[13] In relation to the CPSU’s contention that the agreement should not be approved “save and except for clauses 2.3(b) and 3.19”, it is noted that the Commission may either approve the agreement or not, each for the reasons that are set out within the Act.

[14] In relation to the CPSU’s concern regarding the possible inclusion of clauses 2.3(b) and 3.19 by means of the proffering and acceptance of an undertaking, I note that an agreement may be approved with an undertaking given pursuant to s.190 if an application for approval has been made to the Commission pursuant to s.185 and the Commission has a concern that the agreement does not meet the requirements set out in ss.186 and 187. As a result, the possibility that an undertaking might cure the concern identified by the CPSU arises only if the provisions of clause 2 (Parties and coverage) were considered by me to not meet the requirements of the two sections. Such has not been argued in detail before me, and I am not able to make such a finding. Provision of an undertaking is therefore not an alternative for consideration as a means to address the CPSU’s concern.

[15] The provisions of the two clauses of concern identified by the CPSU are as follows;

“2. Parties and coverage

...

2.3 This Agreement applies to and covers:

(a) AHPRA Employees in Queensland;

(b) the following organisations of Employees: the Community and Public Sector Union (SPSF Group) (CPSU), the Queensland Nurses Union of Employees (QNU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU).”

“3. Definitions

...

3.19 Union - means the Community and Public Sector Union (SPSF Group), the Queensland Nurses Union of Employees (QNU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU).

...”

[16] It is apparent from these provisions that there is no aspect of the clauses which would cause the Commission to form the view that, through inclusion of the clauses, the provisions of either ss.186, 187, or 188 have not been met.

[17] In any event, and for the reasons which are set out above, I am satisfied that the requirements for approval set out in sections 186 and 187 have been met and pursuant to s.186(1), I must therefore approve the agreement.

Coverage

[18] Pursuant to the provisions of s.183 of the Act, an employee organisation that is a bargaining representative for the Agreement may give written notice stating that it wants the enterprise agreement to cover it.

Coverage of the CPSU, the QNU and ANMF

[19] As referred to above, the ASU, the CPSU, QNU and ANMF have each given notice pursuant to s.183 that they wish to be covered by the Agreement.

[20] It is to be noted that not only does the CPSU object to the ASU being covered, but that whereas four unions seek coverage, clause 2.3 refers to only to three unions being covered by the Agreement, namely the CPSU, QNU and the ASU.

[21] In addition it is the case that clause 3.19 of the Agreement defines the term “union” to mean three unions only, namely the CPSU, QNU and the ASU.

[22] In each case clauses 2.3 and 3.19 do not refer to the ANMF.

[23] The evidence supports the enterprise agreement covering the CPSU and the QNU and an order to that effect will be issued.

[24] The application made to the Commission by AHPRA on 23 March 2015, the Form F16, provides details at item 5 of the known union bargaining representatives.

[25] The ANMF is not one of those unions, however the CPSU, QNU and ASU are.

[26] Notwithstanding that the application made by AHPRA does not refer to the ANMF being a bargaining representative, the ANMF filed a statutory declaration declaring that they were a bargaining representative because “one or more members of the Union are employees who are covered by the Agreement and the Union is entitled to represent the industrial interests of those employees in accordance with s.176(1)(b) of the Fair Work Act 2009”. In the absence of any contrary evidence, I accept that the ANMF was a bargaining representative and is entitled to apply for and be covered by the Agreement, and an order to that effect will be issued.

Coverage of the ASU

[27] As previously referred to, the CPSU objects to the ASU being covered by the Agreement with its objection in summary being that the ASU cannot be a bargaining representative for reason of its eligibility rules. If the ASU is not eligible to enrol employees as members, it is not entitled to represent the industrial interests of employees who might be covered by the Agreement.

[28] This matter was the subject of a hearing before the Commission on 28 May 2015, with notice being given to AHPRA and others of the hearing, together with Directions to any party who wished to be heard on the subject, for the filing of outlines of submissions and witness statements which they sought the Commission to take into account.

[29] At the hearing there was no attendance on behalf of AHPRA or the ANMF or QNU, and no submissions were filed on behalf of those parties.

[30] In addition to submissions being made on behalf of the CPSU and ASU, both in writing and orally, evidence was provided in the form of statutory declarations from Troy Wright, Senior Industrial Officer with the CPSU, and Irene Monro, Branch Assistant Secretary, of the ASU’s Queensland Together Branch. Neither declaration was the subject of oral evidence.

[31] The evidence provided by Mr Wright includes a summary of the formation of the CPSU and its coverage with the contention that associated bodies of the CPSU and its Victorian branch have long histories of coverage over the past century, with it being said that “[t]he core area of coverage during that time has generally but not exclusively been public civil service or statutory authorities of the State”. 1 The CPSU also argued that its coverage of clerical and administrative employees is not limited to the public sector and that “included within its membership are employees engaged in the private sector in such roles in specific and often expressly identified agencies”.2

[32] Mr Wright’s statutory declaration also traverses the formation and history of enterprise bargaining in AHPRA. In this regard it is said that an earlier enterprise agreement covering AHPRA employees in Victoria, the Northern Territory and the ACT 3 covered only the CPSU and the Australian Nursing Federation, the antecedent of the ANMF, with no coverage of the ASU either formally or through it being a bargaining representative. Similarly it is said that an earlier enterprise agreement covering AHPRA employees in Western Australia,4 and which involved appeal proceedings before the Full Bench, covers the CPSU, but not the ASU; and that enterprise agreements covering AHPRA employees in South Australia5 and New South Wales6 cover the CPSU and the ANMF.

[33] Ms Monro’s statutory declaration refers to her having been advised by a Branch Industrial Advocate that 9 people named in her declaration employed by AHPRA at its Brisbane address are members of the ASU.

[34] She states that she has been advised that all of the people named in the declaration “are employed predominantly in clerical and administrative work”. 7

[35] For the reason that the declaration refers to the names of employees said to be members of the ASU, the declaration was not made available to the CPSU at the request of the ASU, and the CPSU did not argue that the declaration should be provided to it, or that Ms Monro should provide oral evidence and be available for cross-examination.

[36] While the CPSU did not object to the way in which Ms Monro’s statutory declaration was provided to the Commission, or that its contents should be made confidential, the CPSU did object to the assertion within the declaration to the effect that the members are employed predominantly in clerical and administrative work. In this regard Counsel for the CPSU argued that the union was not able to test that aspect, since it did not know the identity of the employees concerned and had no direct evidence of the work that they undertook.

[37] As referred to above, the CPSU contests vigorously the proposition that the ASU is entitled to enrol as a member any employee of AHPRA. The core of that argument is that the ASU does not have sufficient coverage within its industry and membership eligibility rule to validly enrol such employees.

[38] On the other hand the ASU argues that it has the capacity to enrol AHPRA employees as members.

[39] Firstly, the ASU points to the provisions of s.176(3) of the Act which enables an employee organisation to be a bargaining representative in the event that “the organisation is entitled to represent industrial interests of the employee in relation to work that will be performed under the agreement”. The ASU further argues that the CPSU’s argument;

“... does not rely upon any analysis of the text of the relevant ASU eligibility rule … but upon the mere assertion that the rule is to be impliedly limited by reference to the ‘public sector’. There is no support for this contention anywhere in the submissions or material.” 8

[40] This argument is a reference to the following extract of the CPSU’s argument about the ASU’s industry rule;

“As a consequence of the ASU's Industry rule, it has traditionally covered members employed in clerical and administrative functions in the private sector.

The CPSU has traditionally covered members employed in clerical and administrative functions in the public sector.” 9

[41] The ASU says the following about this argument on the part of the CPSU;

“This is misconceived. The ASU has not, as matter of fact, ‘traditionally covered’ private sector employees ‘as a consequence of the industry rule’. Indeed it is common ground that the ASU covered persons under the predecessor state based regulatory body under the Queensland industrial relations system. [ref: Queensland Public Health Sector Certified Agreement (no 7) 2008 (EB7)] The ASU has enjoyed significant coverage in the public sector (see below). However the proposition advanced is not just wrong as a matter of fact, but not recognised by any legal authority.” 10

[42] A feature of the CPSU’s argument to the Commission is that AHPRA is, and should be found to be by the Commission as presently constituted, a “public sector employer”. The CPSU submissions refer to several decisions of the Commission on the subject which would give rise to the view that;

● AHPRA is a product of both Commonwealth and State and Territory legislation, giving the Agency both corporate status as well as the functions it performs;

● AHPRA was formed and pursued its early enterprise bargaining in the way set out in Mr Wright’s statutory declaration;

“14. On 1 July 2010 AHPRA came into existence, replacing a plethora of Boards and other agencies in each State and Territory, and controlled by respective State and Territory Governments, which served to regulate the health professions through registration with one national body with a physical presence in each capital city.

15. AHPRA recognised that employees of the predecessor organisations were members or eligible to be members of the CPSU and its State-registered Associated Bodies, and accordingly engaged in consultation with the CPSU prior to the commencement of AHPRA's operations regarding the transfer of employment of these persons to the new agency.” 11

● Previous decisions of the Commission, including of the Full Bench, have found variously that AHPRA is a public sector employer under Queensland legislation; 12 that it is a national system employer in respect of a Western Australian enterprise agreement application, notwithstanding that it is a public sector employer;13 and that it is not a “Crown corporation” as that term is used in relation to Queensland entities.14

Consideration

[43] As referred to previously, the issue in respect of coverage is first dealt with by s.183(1) of the Act. An employee organisation may seek to be covered by the Agreement, with the condition that it was “an employee organisation that was a bargaining representative for the proposed enterprise”.

[44] The appointment of bargaining representatives for the purposes of bargaining to an enterprise agreement is set out within s.176 of the Act, which relevantly provides as follows;

“176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and

(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the
authorisation;

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.

(2) [omitted]

(3) Despite subsections (1) and (2):

(a) an employee organisation; or

(b) an official of an employee organisation (whether acting in that capacity or otherwise);

cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.

(4) [omitted]

...”

[45] Drawing from these provisions, the proposition arises that if an employee organisation has no right of coverage of the employees’ work, it is not able to be a bargaining representative under the Act. An organisation that is not able to be a bargaining representative for the purposes of bargaining would also not be one that could seek to be covered by the agreement once it had been made.

[46] Consideration must therefore be given to whether or not the ASU, as the organisation objected against, is entitled to represent the interests of the employees it says are its members employed by AHPRA. To that extent, the industry and membership eligibility rule of the ASU is relevant for consideration. The most recent rules of the Australian Municipal, Administrative, Clerical and Services Union are those certified by the Delegate to the Fair Work Commission’s General Manager and incorporating alterations of 27 February 2015 (the ASU Rules).

[47] The ASU argued that it is an organisation’s eligibility rule which governs coverage and the rule is not to be read down by reference to the industry rule or indeed to propositions of historical coverage. 15 The ASU submitted that this proposition had been confirmed by the High Court, when it found that;

“... the identity of the industry in respect of which the organization is registered is not definitive of the eligibility of persons to be members of the organization in any case where the eligibility clause of the constitution of the organization travels beyond the bounds of the industry in respect of which the organization is registered.” 16

[48] Further, the ASU argued that consideration of the industry rule when construing who might be eligible to be members of the union would be a limited consideration for the purpose of resolving doubt as to the proper construction of the eligibility rule. 17

[49] Rule 5 of the ASU Rules is a composite industry and eligibility rule. Rule 5 is an extensive elaboration in itself, extending for over 32 pages. Rule 5 comprises two main Parts, sub-rule 5(a), entitled “description of industry” and sub-rule 5(b), entitled “eligibility for membership”.

[50] The CPSU’s submissions refer to the ASU’s sub-rule 5(a), Parts I to XI, and sub-rule 5(b) Part II. The ASU submissions refer to sub-rule 5(b), Part II.

[51] It was not argued to me by Counsel for either union that there were other relevant parts of Rule 5 and in any event my perusal of the rule does not reveal other parts that should be taken into consideration.

[52] There are 11 Parts to sub-rule 5(a), which deals with “description of industry”. Analysis of the description of industry sub-rule, together with the parties’ submissions leads to the following conclusions;

● Sub-rule 5(a), Part II may have application, referring as it does to the clerical industry in the following terms;

“a. Description of Industry

PART I

The industry of operations conducted by Municipal County and Shire Councils and Local Government Bodies and of the operation of public and quasi public undertakings by electric, gas, water, sewerage and road making trusts, boards, commissions and corporations (not formed or constituted for the purpose of private gain) and similar bodies.

PART II

The Industry in or in connection with which the Union is formed is, without in any way limiting the generality of the provisions of Rule 4 - Eligibility of Membership Part II and the construction proper at any time or times to be placed thereon, the Clerical Industry.

PART III

...”

● The remaining Parts of sub-rule 5 appear, on the basis of the material before me, to have no application.

[53] Sub-rule 5(b), “eligibility for membership”, contains 27 parts. I have given consideration to each of these parts, from which the view arises that, alone amongst those Parts, only Part II, again referring to clerical work, appears to have application to the work undertaken by employees engaged by AHPRA. The remaining Parts of sub-rule 5(b) appear, on the basis of the material before me, to have no application.

[54] Sub-rule 5(b), Part II provides as follows;

“b. Eligibility for Membership

PART I

...

PART II

The Union shall consist of all persons engaged in any clerical capacity, and/or engaged in the occupation of shorthand writers and typists and/or on calculating, billing, or other machines designed to perform or assist in performing any clerical work whatsoever.

Notwithstanding anything to the contrary contained in this rule:

(i) persons who are members, staff members or special members of the Australian Federal Police, or

(ii) persons who are assistant customs officers or customs officers employed in the Australian Customs Service,

(iii) all persons employed by SingTel Optus except persons employed by SingTel Optus in call centres in South Australia. A reference to SingTel Optus in this sub-rule includes any company in the Optus Group or a company which is the successor, assignee or transmittee of the business of Singtel Optus or a company in the Optus Group.

are not eligible for membership of the Union.

Without in any way limiting or being limited by any other provisions of these rules the Union shall consist of an unlimited number of persons wholly or substantially employed in the higher education industry, other than academic staff, who are employees in administrative and clerical occupations employed by:

University of Queensland or

Griffith University or

James Cook University of North Queensland or

Queensland University of Technology or

University of Central Queensland or

the University of Southern Queensland.

and

PART III

...”

[55] It has not been argued to me that the reference in sub-rule 5(b), Part II to the eligibility for membership of “persons engaged in any clerical capacity” is ambiguous or requiring of determination through reference to the industry rule. 18

[56] The evidence before the Commission in relation to the work of employees of AHPRA is limited.

[57] While the Agreement contains wages for particular classifications, the Agreement itself does not include descriptors for those classifications, so the Commission is left with no significant information about the work which can be expected to be undertaken within each classification for which a wage rate is assigned. Because AHPRA chose not to attend these proceedings or otherwise place any evidence or submissions before me other than the application form and its Form F17 Employer's Declaration, I have had to rely on the classification translation table provided in that form.

[58] The classification translation material provided by AHPRA compares the Agreement’s classifications with those within the State Government Agencies Administration Award 2010, 19 being the relevant reference modern award (referred to as the SGAA Award). This classification translation material is set out in Appendix 1 to this decision.

[59] The coverage of the SGAA Award is set out in clause 4 and includes the following;

“4. Coverage

4.1 This award covers State public sector employers, other than State public service bodies, that are incorporated bodies established for a public purpose by or under a law of a State, by the Governor of a State or by a Minister of the State or a body corporate in which the State has an equal or controlling interest, and their employees in the classifications listed in clause 14—Minimum wages, to the exclusion of any other modern award.”

[60] It is noted that clause 4 of the modern award also provides other subclauses which are not reproduced here for the reason that I do not consider them to be relevant to the determination of this matter.

[61] The SGAA Award defines that references by it to an “employer” or “employee” are references to national system employers or employees within the meaning of the Act. Further, the term “state public service bodies” is defined to mean “state government departments and administrative offices”. 20

[62] In its submissions, the CPSU made extensive reference to AHPRA being a public sector employer. In particular, the CPSU argued the following;

“39. AHPRA administers the National Registration and Accreditation Scheme of health professionals in Australia. The background to AHPRA is described in the statutory declaration of Mr Troy Wright at paragraph 14.

40. The Applicant submits that AHPRA is a public sector employer.

41. The Full Bench decision of CPSU v Australian Health Practitioners Regulation Agency addressed the background to the creation of AHPRA as follows:

AHPRA is a single national entity created through an Act of the Queensland Parliament and has continued existence through the Health Practitioner Regulation National Law Act 2009 (Qld), which is replicated in mirror legislation in each State and Territory. The background to the creation of AHPRA is detailed and complex.

42. The Full Bench held, ‘AHPRA is a public sector employer under the Queensland Referral Act because it is an agency established for a public purpose.’” 21

[63] That AHPRA is a public sector employer has been determined by the Full Bench. 22 However, a question arises as to whether it is a “State public sector employer” for the purposes of the coverage clause of the SGAA Award. In this regard, the Full Bench considered whether AHPRA was a national system employer for reason of it being a “body established for a public purpose” under State law, with the Full Bench specifically finding that it was not necessary to reach a concluded view that AHPRA falls within the phrase “an agency established for a State purpose”,23 being a term used in the Queensland Referral Act, the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld).

[64] Whereas the Full Bench consideration went to whether AHPRA was established for a “State purpose”, the context of that consideration was within the proper construction of a term used in a State Act, and in particular whether AHPRA fell within the description of “an agency ... established under an Act ... for a public or State purpose”. 24 The Full Bench found that the two concepts of “public purpose” and “State purpose” are alternatives and must be construed as having different meanings.25

[65] In contrast to a consideration of whether AHPRA’s establishment was for a State purpose, the SGAA Award coverage clause employs different language, referring to establishment for a public purpose, with the award covering “incorporated bodies established for a public purpose by or under a law of a State”.

[66] It is relevant for consideration of application of the modern award to take into account the earlier findings of the Commission that AHPRA is a national system employer, and is a public sector employer; but not a Crown corporation under Queensland law. I find therefore that the SGAA Award is the modern award that would apply to AHPRA in respect of the employment of persons to be bound by the enterprise agreement before me at this time.

[67] Because of that finding, I am satisfied that the overall context of the Agreement is for the approval of an instrument that covers numerous activities within AHPRA and that those activities include work that would ordinarily be considered work of a “clerical capacity”.

[68] The classification translation table, submitted in the AHPRA Employer's Declaration in support of its application (the Form F17), together with the evidence of Mr Wright and Ms Monro, limited though the totality of that material may be, has informed my consideration of the relevant parts of the ASU industry and eligibility rule and its application to the members that the ASU asserts it has. In particular, in the absence of alternative material that would accurately describe the work of AHPRA employees, I have had to have regard to the content of the SGAA Award as the ultimate underpin of work to be covered by the Agreement.

[69] The SGAA Award provides for 3 different streams of employees within the classification structure, namely;

● Administrative Officer, with 8 grades of classification;

● Technical Officer, with an entry-level assistant and 7 grades of classification; and

● Professional Officer, with 5 grades of classification.

[70] Whereas the classification translation document provided within AHPRA’s material suffers from some level of unexplained abbreviation, it is sufficiently apparent from the document that each of the Administrative Officer classifications are translated to the Agreement. In this respect, the classification translation document shows that each of the modern award Administrative Officer classifications, shown respectively as AO 1 to AO 8, are translated to the corresponding AHPRA levels, respectively AHPRA Level 1 to AHPRA Level 8.

[71] Schedule B of the SGAA Award sets out detailed Position Statements for each of the classifications prescribed by the award. There is sufficient detail within the statements set out for the Administrative Officer positions to be satisfied that the work envisaged within some, if not all, of those positions is of a clerical capacity. In this regard particular reference is made to the following extracts from the SGAA Award Position Statements;

“B.1 Administrative Officer

B.1.1 Administrative Officer Grade 1

● Positions at this level work under routine direction and undertake a combination of keyboard, clerical and other duties. The work initially requires the application of basic administrative procedures, office skills and routines such as receiving and dealing initially with clients and members of the public; the straight forward operation of keyboard equipment; filing; photocopying; collating; collecting and distributing; carrying out routine checks by simple comparisons; simple coding; maintaining basic records; mail procedures; obtaining or providing information about straightforward matters and routine user maintenance of office equipment.

● Keyboard tasks may include the keying of data containing unusual technical terms and/or non-standard complicated tables or diagrams which demand considerable judgment about layout, and the manipulation and interpretation of data before and during entry.

● Initially the work is performed under close direction using established routines, methods and procedures and there is little scope for deviating from these. Tasks are mixed to provide a variety of work experience; some may be of a routine operational nature.

...”

“B.1.2 Administrative Officer Grade 2

● Positions at this level usually work under general direction and the work is subject to regular checks. Detailed instruction is not always necessary and there is scope for staff to exercise initiative in applying established work practices and procedures.

● This level encompasses a range or combination of operational, supervisory and administrative activities which require the application of skills and experience in office work and a general knowledge of the work to be performed.

...”

“B.1.3 Administrative Officer Grade 3

● Positions at this level usually work under general direction and require relevant experience combined with a broad knowledge of the agency’s functions and activities and a sound knowledge of the major activity performed within the work area. Positions with supervisory responsibilities may undertake some complex operational work and may assist with, or review, the work undertaken by subordinates or team members.

...

● Work is usually performed under general direction and may involve preparing papers, briefing notes, correspondence or other written material and general administrative support to senior officers.

...

● Positions at this level may have responsibilities for training operational and administrative staff. Functions may include organising training courses, assisting in the preparation of training material and, where courses are short and involve procedural or administrative subject matter, presenting those courses.

...”

“B.1.4 Administrative Officer Grade 4

...

● Work at this level requires a sound knowledge of program, activity policy or service aspects of work performed within a functional element or a number of work areas. The work may cover a range of tasks associated with program, activity or service delivery to clients or other interested parties or administrative support to senior officers.

...

● The work is usually performed under general direction. Tasks may include providing administrative support to staff within technical or professional structures. This may include collecting and analysing data and information and preparing reports, publications, papers and submissions including findings and recommendations.

...

● Positions at this level may have supervisory responsibilities over staff operating a wide range of office equipment or undertaking a variety of tasks in the area of responsibility which may include planning and coordinating work across a number of work areas or activities. Staff in supervisory position would be expected to facilitate a participative decision making process and participate in decision making on issues relating to their work area.

...”

[72] Whereas the CPSU contended that there was insufficient evidence before me in the form of Ms Monro’s statutory declaration to be satisfied that the 9 people referred to within that declaration in fact were “employed predominantly in clerical and administrative work”, I am prepared to rely upon that declaration and particularly so given that the CPSU did not insist upon seeing its contents or cross examining Ms Monro on the contention that the employees were engaged in a clerical capacity.

[73] As a result, I find that the evidence leads to the conclusion that the ASU was entitled to represent the industrial interests of the people so named in Ms Monro’s statutory declaration, for the reason that they were likely to be engaged in a clerical capacity and thereby within the ASU’s eligibility rule.

[74] The entitlement of an employee organisation to have an enterprise agreement cover it is dealt with in s.183 of the Act which prescribes the means by which an employee organisation is to give notice of its desire to the Commission. In addition to the provisions of s.183, it is relevant to consider those within s.201, dealing with the requirement of the Commission to note certain matters in its approval decision. Relevant to this decision are the provisions of s.201(2) which provide the following;

“201 Approval decision to note certain matters

...

Approval decision to note that an enterprise agreement covers an
employee organisation

(2) If:

(a) an employee organisation has given a notice under subsection 183(1) that the organisation wants the enterprise agreement to cover it; and

(b) the FWC approves the agreement;

the FWC must note in its decision to approve the agreement that the agreement covers the organisation.

...”

[75] Having found that the ASU was entitled to be a bargaining representative of the people it has named to the Commission, it follows that I must note in my decision to approve the Agreement that it will also cover the ASU.

[76] In addition to finding that the Agreement will cover the ASU, my decision will note that it will also cover the CPSU, the QNU and the ANMF.

Conclusion

[77] The application by AHPRA is for the approval of Australian Health Practitioner Regulation Agency Enterprise Agreement (QLD) 2014-2016. The agreement is a single-enterprise agreement.

[78] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[79] The Community and Public Sector Union (SPSF Group) (CPSU), the Queensland Nurses Union of Employees (QNU), the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Australian Nursing and Midwifery Federation (ANMF), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2), I note that the Agreement covers the organisations.

[80] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 July 2015. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Appearances:

Ms C Hartigan (of counsel), Ms R Smith (solicitor) and Mr T Wright for the CPSU

Mr J Nolan (of counsel), Mr J Payne (solicitor) and Mr J Nucifora for the ASU

Hearing details:

2014.

Melbourne (Video Link to Brisbane and Sydney):

28 May.

APPENDIX 1 - CLASSIFICATION TRANSLATION TABLE

 1   Exhibit CPSU 2, para 8

 2   ibid, para 10

 3   Australian Health Practitioner Regulation Agency Enterprise Agreement (Vic, NT, ACT) 2011-2014 [AE892819]

 4   Australian Health Practitioner Regulation Agency Enterprise Agreement (WA) 2013-2014 [AE402034]

 5   Australian Health Practitioner Regulation Agency Enterprise Agreement (SA) 2013-2016 [AE405968]

 6   Australian Health Practitioner Regulation Agency Enterprise Agreement (NSW) 2013-2016 [AE405969]

 7   Exhibit ASU 1, para 4

 8   Exhibit ASU 2, para 1.7

 9   Exhibit CPSU 1, paras 36 – 37

 10   Exhibit ASU 2subs, para 2.2

 11   Exhibit CPSU 2, para 14 -15

 12   CPSU and another v Australian Health Practitioners Regulation Agency [2013] FWCFB 661

 13   AHPRA v Civil Service Association of Western Australia Incorporated [2013] FWC 3256

 14   Together Queensland, Industrial Union of Employees v Australian Health Practitioner Regulation Agency and anor[2014] FWC 3952

 15   Exhibit ASU 2, para 2.1

 16   R v Watson; Ex parte Australian Workers' Union [1972] HCA 72; (1972) 128 CLR 77, at p.79 per Barwick CJ

 17   Construction, Forestry, Mining and Energy Union v CSBP Limited [2012] FCAFC 48, (2012) 212 IR 206, at [52]; with reference to R v Gough; Ex parte Municipal Offıcers’ Association Australia (1975) 133 CLR 59, at p.68-69

 18 [2012] FCAFC 48, (2012) 212 IR 206, at [52]

 19   MA000121

 20   Ibid, cl.3.1

 21   Exhibit CPSU 1, paras 39 – 42

 22   [2013] FWCFB 661, at [26]

 23   Ibid

 24   Ibid, at [22]

 25   Ibid, at [25]

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