Australian Municipal, Administrative, Clerical and Services Union
[2014] FWC 3774
•16 JUNE 2014
[2014] FWC 3774 |
FAIR WORK COMMISSION |
DECISION |
Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act - Application for alteration of eligibility rules
Australian Municipal, Administrative, Clerical and Services Union
(D2013/128)
VICE PRESIDENT HATCHER | SYDNEY, 16 JUNE 2014 |
Application for alteration of eligibility rules.
Introduction
[1] On 1 October 2013 the Australian Municipal, Administrative, Clerical and Services Union (ASU) filed an application for consent, under s.158 of the Fair Work (Registered Organisations) Act 2009 (RO Act), to proposed alterations to its eligibility rule.
[2] Rule 5 of the ASU’s Rules is divided into two parts, (a) Description of Industry and (b) Eligibility for Membership. The ASU seeks to make two changes to part (b) Eligibility for Membership. The first is to amend Part XIV and Part XV of rule 5(b), and the second is to insert a new Part XXIII.
[3] Part XIV and Part XV of rule 5(b) currently provide as follows:
“PART XIV
The Union shall consist of an unlimited number of employees (as defined in this Part) employed by the SECWA, the Gas Corporation or the Electricity Corporation.
For the purposes of this rule:
“SECWA” means the State Energy Commission of Western Australia.
“Electricity Corporation” means the body established as one of the successor organisations to State Energy Commission of Western Australia on 1 January 1995 pursuant to the Electricity Corporation Act (WA) 1994 and any successor, assignee or transmittee to the business or part of the business of the Electricity Corporation.
“Gas Corporation” means the body established as one of the successor organisations to State Energy Commission of Western Australia on 1 January 1995 pursuant to the Gas Corporation Act (WA) and any successor, assignee or transmittee to the business or part of the business of the Gas Corporation.
“Employees” means all persons engaged:
(1) as salaried officers
(2) in administrative, clerical, technical, engineering, scientific, professional, supervisory, managerial and operational classes of work
(3) in occupational health nursing
(4) in journalism or public relations.
PART XV
The Union shall consist of an unlimited number of employees employed by Edison Mission Operation and Maintenance Kwinana Pty Ltd. at the Kwinana Co-generation Plant, Kwinana, Western Australia (Edison Mission), or any successor, assignee or transmittee to or of the business or part of the business of Edison Mission.”
[4] The proposed alteration to Parts XIV and XV in the ASU’s application were as follows (with the changes in mark-up):
“PART XIV
The Union shall consist of an unlimited number of employees (as defined in this Part)
employed by the SECWA, the Gas Corporation, or the Electricity Corporation, or a Utilities Corporation.
For the purposes of this rule:
“SECWA” means the State Energy Commission of Western Australia.
“Electricity Corporation” means the body established as one of the successor organisations to State Energy Commission of Western Australia on 1 January 1995 pursuant to the Electricity Corporation Act (WA) 1994 and any successor, assignee or transmittee to the business or part of the business of the Electricity Corporation.
“Gas Corporation” means the body established as one of the successor organisations to State Energy Commission of Western Australia on 1 January 1995 pursuant to the Gas Corporation Act (WA) and any successor, assignee or transmittee to the business or part of the business of the Gas Corporation.
"Utilities Corporation" includes any of Electricity Generation Corporation (T/A Verve Energy), Electricity Networks Corporation (T/A Western Power), Electricity Retail Corporation (T/A Synergy), Regional Power Corporation (T/A Horizon Power), AlintaGas Ltd, Alinta Limited, ATCO Gas Australia Limited, Monadelphous Energy Services Pty Ltd or any successor, assignee or transmittee whether immediate or not to or of the business or part of the business of any of those entities.
“Employees” means all persons engaged:
(1) as salaried officers;
(2) in administrative, clerical, technical, engineering, scientific, professional, supervisory, managerial and operational classes of work;
(3) in occupational health nursing;
(4) in journalism or public relations.
PART XV
The Union shall consist of an unlimited number of employees employed by Edison Mission IPM Operation & Maintenance Kwinana Pty Ltd at the Kwinana Co - generation Plant, Kwinana, Western Australia (Edison Mission), (“IMP”) or any successor, assignee, or transmittee, whether immediate or not to or of the business or part of the business of Edison Mission IPM.”
[5] The proposed new Part XXIII was as follows:
“PART XXIII
Employees within the State of Western Australia engaged in:
(a) the generation, transmission, distribution, and/or retailing of electricity; or
(b) the transmission, distribution and/or retailing of gas; as salaried officers; in administrative, clerical, technical, engineering, scientific professional, supervisory, managerial and operational classes of work; in occupational health nursing; in journalism; or in public relations, shall be eligible to be members of the Union.”
[6] Notice of the ASU’s application was published in the Commonwealth of Australia Gazette Notices on 16 December 2013. Separate notices of objections were received from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Construction, Forestry, Mining and Energy Union (CFMEU) and the Australian Nursing and Midwifery Federation (ANMF).
[7] The grounds of the CEPU’s objection, lodged on 19 December 2013, were as follows:
(1) that prescribed conditions for the application seeking the consent of the Fair Work Commission have not been complied with;
(2) that the alterations, the subject of the application, have not been made in accordance with the Rules of the applicant;
(3) the objector is an organisation to which persons could more conveniently belong for the purposes of s.158(4)(a) of the RO Act;
(4) the objector is an organisation that would more effectively represent persons who would be eligible for membership because of the alteration for the purposes of s.158(4)(b) of the RO Act;
(5) no undertaking is appropriate to avoid demarcation disputes that might arise from consent to the application being granted;
(6) the application is contrary to the objects of the RO Act; and
(7) such further or other grounds as the Fair Work Commission may deem fit.
[8] The grounds of the CFMEU’s objection, lodged on 6 January 2014, were:
(1) employees who fall within the eligibility rule proposed by the applicant could more conveniently be members of the objector; and
(2) the objector is an organisation that would more effectively represent the employees who fall within the applicant’s proposed eligibility rule.
[9] The grounds of the ANMF’s objection, lodged on 20 January 2014, were:
(1) in relation to persons who would be eligible for the membership of the ASU because of the proposed alteration, there is another organisation, namely the ANMF, to which some of the persons sought to be covered could more conveniently belong;
(2) in relation to persons who would be eligible for membership of the ASU because of the proposed alterations, there is another organisation, namely the ANMF, that could more effectively represent those members; and
(3) such further or other grounds as the Tribunal may deem fit.
Settlement of the objections
[10] After discussions between the ASU and the three objector unions, the objections were settled between the parties. The ASU agreed to amend its proposed alterations to rule 5(b). It filed an amended application on 3 June 2014 containing the amended alterations to rule 5(b) as follows (with the amendments to the original alterations marked up):
“PART XIV
The Union shall consist of an unlimited number of employees (as defined in this Part)
employed by the SECWA, the Gas Corporation, the Electricity Corporation, or a Utilities Corporation.
For the purposes of this rule:
“SECWA” means the State Energy Commission of Western Australia.
“Electricity Corporation” means the body established as one of the successor organisations to State Energy Commission of Western Australia on 1 January 1995 pursuant to the Electricity Corporation Act (WA) 1994 and any successor, assignee or transmittee to the business or part of the business of the Electricity Corporation.
“Gas Corporation” means the body established as one of the successor organisations to State Energy Commission of Western Australia on 1 January 1995 pursuant to the Gas Corporation Act (WA) and any successor, assignee or transmittee to the business or part of the business of the Gas Corporation.
"Utilities Corporation" means any of Electricity Generation Corporation (T/A Verve Energy), Electricity Networks Corporation (T/A Western Power), Electricity Retail Corporation (T/A Synergy), Regional Power Corporation (T/A Horizon Power), AlintaGas Ltd, Alinta Limited, ATCO Gas Australia Limited, Monadelphous Energy Services Pty Ltd or any successor, assignee or transmittee to or of the business or part of the business of any of those entities.
“Employees” means all persons engaged:
(1) as salaried officers;
(2) in administrative, clerical, technical, engineering, scientific, professional, supervisory, managerial and operational classes of work;
(3) in occupational health nursing;
(4) in journalism or public relations.
PART XV
The Union shall consist of an unlimited number of employees employed by IPM Operation & Maintenance Kwinana Pty Ltd at the Kwinana Co-generation Plant, Kwinana, Western Australia, (“IPM”) or any successor, assignee, or transmittee, whether immediate or not to or of the business or part of the business of IPM.
PART XXIII
Employees within the State of Western Australia engaged in:
(1) The generation, transmission, distribution and/or retailing of electricity: as salaried officers; in administrative, clerical, technical, engineering, scientific, professional, supervisory, managerial and operational classes of work; in occupational health nursing; in journalism; or in public relations, shall be eligible to be members of the Union provided that:
(a) employees eligible to be members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) requiring electrical, instrumentation, mechanical and fabrication skills as a requirement for their work, and who perform: linesperson work, electrical trades work, electrical instrumentation work, electrical fitting work, electrical mechanical work, electric cable jointing work, electrical meter repair work, incidental switching work as it applies to the work above, mechanical work, fabrication work and trades assistants/general assistants work (inclusive of crane driving, forklift driving, truck driving, where applicable) and co-ordination of a work team (for example team leader, crew leader, leading hand or team coordinator) as an incidental function to any of the above primary work, shall not be eligible for membership under paragraph (1) of this Part;
(b) employees eligible for membership of the Construction, Forestry, Mining and Energy Union:
(i) employed in power generation stations whose principal function is to undertake work variously known as power station controllers, power station operators, operator/maintainers, production officers, and plant operators who exercise direct control over the electricity generation process and employees engaged in substantially similar classifications and work;
(ii) employed by Transfield Worley Power Service Pty Ltd whose principal function is to exercise direct control over the electricity generation process or in maintenance activities at the Collie Power Station or in such employment by any successor, assignee or transmittee of that business or part of that business; or
(iii) employed in power generation stations whose principal function is to exercise direct control over the electricity generation process or in maintenance work where the generation of power is ancillary to the employer's activities in another industry (notwithstanding that excess power may be sold into the grid e.g.Alcoa);
shall not be eligible for membership under paragraph (1) of this Part.
(2) The transmission, distribution and/or retailing of gas; as salaried officers; in administrative, clerical, technical, engineering, scientific, professional, supervisory, managerial and operational classes of work; in occupational health nursing; in journalism; or in public relations, shall be eligible to be members of the Union.”
[11] The CEPU withdrew its objection on 5 June 2014 on the basis of the above agreed amendments to the proposed eligibility rule alterations and a confidential deed of settlement between it and the ASU. The ANMF withdrew its objection on 4 June 2014 on the basis of the above amendments and a signed undertaking entered into between it and the ASU. The undertaking between the ASU and the ANMF is that “[t]he ASU undertakes to the ANMF that in respect of the alteration to the ASU’s rules provided for in the abovementioned application that it will not by the application disturb the status quo as to membership, awards, agreements and industrial coverage as between the two organisations.”. The CFMEU withdrew its application on 5 June 2014 on the basis of the amendments only.
[12] At the hearing of the ASU’s application on 6 June 2014, the ASU sought that consent be granted to the amended alterations to rule 5(b) contained in its amended application lodged on 3 June 2014.
Consideration
[13] Section 158 of the RO Act specifies a number of statutory requirements in respect of the grant of consent to changes or alterations to the eligibility rules of an organisation. I will deal with each of these in turn.
[14] Section 158(2) provides as follows:
(2) The FWC may consent to a change or alteration in whole or part, but must not consent unless the FWC is satisfied that the change or alteration has been made under the rules of the organisation.
[15] I am satisfied, on the basis of a declaration made by Mr David Smith, the National Secretary of the ASU, on 20 September 2013, that the alterations to rule 5(b) as contained in the ASU’s original application filed on 1 October 2013 were made under the Rules of the ASU. However, the amended version of the alterations were not the subject of any further approval process by the ASU under its Rules. The question then arises whether it is permissible under s.158(2) to grant consent to the amended rules alterations.
[16] Section 158(2) provides that the Commission “may consent to a change or alteration in whole or part”. In National Tertiary Education Industry Union v Community and Public Sector Union 1 the Australian Industrial Relations Commission (Williams SDP) adopted the view taken by the Full Bench of the Conciliation and Arbitration Commission in Re Federated Miscellaneous Workers Union of Australia2 that the power to consent to alterations in part “is not limited to the ‘blue pencil’ rule, ie the physical deletion or striking out of parts of the proposed alteration” and that consent to textual amendments “which, as a matter of construction, exclude persons who would otherwise have been eligible under the rules as proposed” is permissible.3 It was further held in NTEU v CPSU and Re Shop Distributive and Allied Employees Association4that where partial consent is given to the alteration of eligibility rules, it is not necessary for the organisation applying for consent to have the amended rules submitted for approval again in accordance with the rules of the organisation.
[17] The ASU submitted that the amended proposed alterations to rule 5(b) represented a narrowing of the expansion to its eligibility rules compared to the original proposed alterations, and thus was capable of being consented to under s.158(2) in accordance with the principles stated above. I accept this submission. Consent to the amended proposed alterations would constitute partial consent to the proposed alterations in their original form, which as I have earlier found, were made under the ASU’s Rules.
[18] Under s.158(4) the Commission is required not to 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 to which these persons could more conveniently belong and that would more effectively represent those members. There was no material before me which would permit me to form the opinion that there was any organisation other than the ASU to which persons who would be eligible for membership of the ASU because of the alterations could more conveniently belong and which would more effectively represent those members.
[19] Section 158(5) provides that s.158(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 those of the other organisation. Since I have not formed the opinion referred to in s.158(4), s.158(5) is not relevant to my consideration of the ASU’s application.
[20] Section 158(6) gives the Commission the discretion to refuse consent if it is satisfied that the alteration to the eligibility rules contravenes an agreement or understanding concerning representational rights to which the organisation is a party. There is no basis for me to conclude that any agreement or understanding relevant to the ASU’s rules alteration exists.
[21] Section 158(7) also gives the Commission the discretion to refuse consent if it is satisfied that the alteration to the eligibility rules would change the effect of a demarcation order made under s.133 in a way which would give rise to a serious risk of a detrimental demarcation dispute. There is no basis for me to conclude that any demarcation order relevant to the rules alteration here exists. Nor, for the purposes of s.158(8), can I identify any other discretionary basis upon which consent to the proposed rules alteration should be refused.
[22] I therefore consent in part to the alteration of the ASU’s Rules as proposed in the ASU’s amended application and as set out in paragraph [10] of this decision. The alteration will take effect from 23 June 2014.
VICE PRESIDENT
Appearances:
M. Rizzo for the Australian Municipal, Administrative, Clerical and Services Union
A. Thomas for the Construction, Forestry, Mining and Energy Union
M. Wright for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Hearing details:
2014.
Sydney:
6 June.
1 (1999) 93 IR 365 at [169]
2 (1974) 157 CAR 623
3 Ibid at 627-628
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