Community and Public Sector Union

[2021] FWC 2398

[2021] FWC 2398

FAIR WORK COMMISSION

DECISION

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

Community and Public Sector Union

(D2020/5)

United Workers’ Union
(D2020/7)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 3 MAY 2021

Application for alteration of eligibility Rules.

[1] This Decision deals with two applications made by the Community and Public Sector Union (CPSU) and the United Workers’ Union (UWU) respectively.

[2] The CPSU applied to the Commission on 8 April 2020, under s.158(1) of the Fair Work (Registered Organisations) Act 2009 (RO Act) to alter its eligibility rules.

[3] The application proposed to render eligible for membership persons employed or engaged to work in any private prison or correctional facility in South Australia by amending section 1(E) of Part II of Rule 2 by inserting sub rule (p) as follows:

“(E) in the State of South Australia the Union shall consist of an unlimited number of persons –

…

(p) Notwithstanding anything contained in this Rule, any person employed or engaged to work in any private prison or correctional facility in the State of South Australia.” 1

[4] The CPSU contends that the reason for the proposed alteration to the eligibility rules is, in short compass, related to its historical coverage in corrections in Australia. The CPSU submits that through its South Australian Branch, it represents many members in all public prisons in South Australia and has an active membership in several privately run prisons in the State.

[5] On 4 May 2020 the UWU applied to the Commission under s.158(1) of the RO Act to alter its eligibility rules to cover persons employed at the Adelaide Remand Centre (ARC).

[6] The application for alteration to the eligibility rules proposed amending Part 25 of Part A of Schedule 1 by inserting the words:

“6. In South Australia: Adelaide Remand Centre”

[7] The UWU contends the reasons for the proposed alteration are as follows:

“2.1 The applicant, through the antecedent organisation – United Voice has and continues to enrol as members persons employed at the Adelaide Remand Centre (Remand Centre) who perform duties at the Remand Centre through their employer (Serco Australia) who is contracted to undertake work at the Remand Centre.

2.2. The Applicant possesses eligibility to enrol as members persons employed in South Australia who perform work at other correctional facilitates that have been privatised (i.e. the work has been awarded to a contracted employer who provide the service for and on behalf of the relevant State Government department.)

2.2 If granted the application would reflect the current industrial circumstances and organising of employees by the Applicant at the Remand Centre.

2.3 The Applicant has the capacity and resources to properly assist and represent the employees subject to this application.

2.4 Such other reasons the Applicant may advance during the course of hearing the application.

2.5 Such other reason as the Commission may deem appropriate.”

[8] The class of persons the subject of the UWU application are employees of the ARC and the class of persons the subject of the CPSU application are employees of any private prison or correctional facility in South Australia. The subject of the UWU application and CPSU application intersect because the ARC is a privately operated prison. Therefore, the two applications were heard together.

[9] Notices of the applications were gazetted in the Commonwealth of Australia Gazette on 18 August 2020.

[10] On 11 September 2020 the CPSU lodged an objection to the UWU’s application. The CPSU objected to the proposed alteration to the eligibility rules on the grounds that the application was not made in accordance with the RO Act or the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations) and the proposed alterations have not been made in accordance with the Rules of the UWU. The CPSU also contended that the class of persons eligible for membership of the UWU because of the proposed alteration could more conveniently belong to the CPSU and the CPSU would more effectively represent those members.

[11] On 17 September 2020 the Australian Municipal, Administrative, Clerical and Services Union (ASU) lodged an objection to the UWU’s application and the CPSU’s application on the following bases:

•  the respective applications were not made in accordance with the RO Act or the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations);

•  the respective proposed alterations have not been made in accordance with the Rules of the CPSU and the UWU respectively;

•  persons who would be eligible for membership of the CPSU and the UWU because of the respective proposed alterations to the eligibility rules, namely social welfare and clerical and administrative persons, could more conveniently belong to the ASU and the ASU would more effectively represent those members; and

•  the respective applications would give rise to demarcation disputes from an overlap between the eligibility rules of the CPSU and the UWU and that of the ASU and the respective alterations would be a source of conflict, dispute and unrest.

[12] On 17 September 2020 the Australian Nursing and Midwifery Federation (ANMF) lodged an objection to the CPSU’s application. The ANMF objected to the proposed alteration to the eligibility rules on the grounds that the ANMF has existing constitutional coverage of all nurses in the State of South Australia who may become eligible for membership of the CPSU because of the proposed alternation to the CPSU’s eligibility rules, and these members could more conveniently belong to the ANMF and the ANMF would more effectively represent those members.

[13] On 21 September 2020 the UWU lodged an objection to the CPSU’s application. The UWU objected on “more conveniently belong” and “more effectively represent” grounds.

[14] The UWU also contended that the Commission must not consent to alter the CPSU eligibility rules in accordance with s.158(1) of the RO Act for the following reasons:

•  the application would give rise to demarcation disputes from an overlap between the eligibility rules of the CPSU and the UWU and the alteration would be a source of conflict, dispute and unrest and would disturb longstanding understandings as to the coverage of persons employed in privately operated correctional facilities in South Australia;

•  the application would contravene agreements and understandings between the CPSU and the UWU to eligibility and coverage of persons employed in privately operated correctional facilities in the State of South Australia; and

•  the application is contrary to a demarcation order within the meaning of s.133 of the RO Act.

[15] On 29 October 2020 the UWU advised it had resolved the issues in dispute between the ASU, the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Plumbing and Allied Services Union (CEPU). The UWU filed three separate deeds of agreement:

•  a memorandum of agreement between the UWU and the ASU dated 1 October 2020;

•  a memorandum of agreement between the UWU and the CEPU dated 1 October 2020; and

•  a memorandum of agreement between the CPSU and the AMWU dated 1 and 7 October 2020.

[16] In respect of the objections by the ASU, the UWU entered into an undertaking not to enrol or seek to represent employees who are or may be employed at the ARC in clerical and administrative capacities and professional social work who are members or are eligible to be members of the ASU. On this basis, the ASU agreed to withdraw its objection.

[17] In respect of the CEPU, the UWU entered into an undertaking not to enrol or seek or purport to represent electricians and/or plumbers at the ARC who are within the eligibility of the CEPU, as a result of the proposed alteration to the eligibility rules. In consideration of this undertaking, CEPU entered into an undertaking not to file an objection to the application.

[18] In respect of the AMWU, the UWU entered into an undertaking not to enrol or seek or purport to represent employees who are or may be employed at the ARC in maintenance trades who fall within the eligibility of the AMWU. In consideration of this undertaking, the AMWU agreed not to file an objection to the application.

[19] On 1 December 2020 the CPSU advised it had resolved the issues in dispute between the ASU, the ANMF, the AMWU and the ASU. The CPSU filed four separate deeds of agreement:

•  a memorandum of agreement between the CPSU and the AMWU dated 20 and 21 September 2020;

•  a memorandum of agreement between the CPSU and the CEPU dated 28 and 30 September 2020;

•  the ASU/CPSU South Australian Private Prisons Agreement dated 27 and 28 October 2020; and

•  the ANMF/CPSU South Australian Private Prisons Agreement dated 28 October 2020.

[20] In respect of the AMWU, the CPSU entered into an undertaking that the proposed alteration to the eligibility rules does not extend the CPSU’s coverage to employees performing construction, fabrication, installation, refurbishment, modification, or maintenance work in private prisons in South Australia, or private prison transport vehicles in South Australia within the eligibility of the AMWU. In consideration of this undertaking, the AMWU entered into an undertaking not to file an objection to the application.

[21] The CEPU agreed not to file an objection in consideration of the CPSU giving an undertaking in the following terms as set out in the memorandum of agreement:

“1. The CPSU undertakes that it will not, by the application disturb the status quo as to membership, awards, and agreements between the two organisations.

2. The CPSU undertakes not to enrol, seek to enrol or otherwise seek to represent or purport to represent employees who are or who may be employed in private prisons or correctional facilities in the State of South Australia as electricians and/or plumbers including ancillary trades or occupations incidental to electricians and/or plumbers and who are members or who are eligible to be members of the CEPU.”

[22] In respect of the objections by the ASU, the CPSU entered into an undertaking not to enrol, recruit or organise persons employed to provide social work or welfare services to prisoners at a private prison or correctional facility in South Australia, and persons employed predominantly in a clerical or administrative capacity by the owner or operator of a private prison or correctional facility, who fall within the ASU’s eligibility. On this basis, the ASU agreed to withdraw its objection.

[23] In respect of the objections by the ANMF, the CPSU agreed to amend its application to exclude persons eligible for membership of the ANMF employed in any private prison or correctional facility. ANMF agreed to withdraw its objection on the filing of such an amendment.

[24] On 12 November 2020 the CPSU and the UWU participated in a conciliation conference before me.

[25] On 27 April 2021 the CPSU filed an executed agreement titled “The UWU/CPSU Private Prisons Agreement” (UWU and CPSU Agreement) as set out in Attachment 1 to this Decision.

[26] By way of the UWU and CPSU Agreement, the UWU withdrew its objection to CPSU’s application in D2020/5 on the basis that the CPSU amended its application to alter its eligibility rules to exclude persons employed by G4S Australia Pty Ltd or any private operator successor at Mount Gambier Correctional Facility and the CPSU agreed the UWU has exclusive coverage of the ARC subject to the ARC Protocol. 2

[27] The terms of the ARC Protocol are set out as follows:

The CPSU will respect the exclusive coverage of the UWU including the right to organise and bargain at ARC subject to paragraph 1.5 below;

1.2. The UWU will on a regular basis (not less than twice a year) inform the local CPSU officers in South Australia of its actions, successes and failures;

1.3. The CPSU will not enrol, seek to enrol or otherwise purport to be able to represent employees at ARC whilst the UWU is organising and bargaining;

1.4 The CPSU will direct any membership enquires it may receive from ARC employees to the UWU;

1.5. In the event that the UWU is unsuccessful in organising employees at ARC then after informing the CPSU, the CPSU may seek to act on behalf of ARC employees. This may include both Unions collaborating to jointly to organise the workforce.” 3

[28] The CPSU withdrew its objection to the UWU’s application in D2020/7 on the basis of the overlapping rules of coverage at the ARC as set out above and on the basis that:

•  the UWU agreed (excluding the Northern Territory or Tasmania) the CPSU shall have exclusive rights of coverage should any public prison become a private prison and the UWU will not object to any necessary alteration of the rules of the CPSU to enable the CPSU to have such rights of coverage; 4

•  the UWU agreed to relinquish coverage of any, or part of any, private prison or correctional service, that begins to be directly operated by a Government; 5 and

•  the UWU agreed, (excluding the Northern Territory or Tasmania) the CPSU shall have the right to negotiate and reach an agreement with the employer and the right to coverage at the greenfields private prison where a Government contracts to operate a private prison and the UWU will not object to any necessary alteration of the rules of the CPSU to enable the CPSU to have such rights of coverage.” 6

[29] In view of the UWU and CPSU Agreement and the ANMF/CPSU South Australian Private Prisons Agreement, the minute of amended application filed by the CPSU proposes to change section 1(E) of Rule 2 by altering sub rule (p) from:

“(E) in the State of South Australia the Union shall consist of an unlimited number of persons –

…

(p) Notwithstanding anything contained in this Rule, any person employed or engaged to work in any private prison or correctional facility in the State of South Australia”

as previously proposed, to:

“(E) in the State of South Australia the Union shall consist of an unlimited number of persons –

…

(p) Notwithstanding anything contained in this Rule, any person employed or engaged to work in any private prison or correctional facility in the State of South Australia. This sub-rule (p) excludes the following persons:

(i) employed by G4S Australia Pty Ltd or any private operator successor at Mount Gambier correctional facility; or

(ii) eligible for membership of the Australian Nursing and Midwifery Federation employed in any private prison or correctional facility.”

[30] The effect of the CPSU’s minute of amended application is to exclude persons at Mount Gambier Correctional Facility and persons eligible for membership of the ANMF employed in any private prison or correctional facility from its application so as to settle the objections of the UWU and ANMF.

[31] On 28 April 2021 the ANMF confirmed that the ANMF/CPSU South Australia Private Prison Agreement had been fully executed and ANMF withdrew its objection to CPSU’s application in D2020/5.

[32] In the circumstances I have decided to determine the matter on the papers.

[33] I will first turn to consider whether the UWU’s proposed alteration to its eligibility rule and the CPSU’s minute of amended application to its proposed alteration have been made under the rules of the respective organisations.

[34] Section 158(1) of the RO Act enables the Commission to consent to an alteration to the eligibility rules of an organisation.

[35] More relevantly, s.158(2) of the RO Act enables the Commission to consent to a change or alteration in whole or part if it is satisfied that the alteration has been made under the Rules of the organisation.

[36] In this regard, the UWU relies on the declaration of its National Secretary, Timothy Kennedy. The declaration demonstrates that the proposed alteration to the eligibility rules as set out in the application made on 4 May 2020 were unanimously resolved by the Member Council on 20 February 2020 in accordance with Rule 86 of the UWU. The unanimous resolution of the Member Council was made during a meeting of the Member Council following a request made to the Member Council to alter the rules through the provision of an agenda and a report on the proposed rule alteration made in accordance with Rule 40 of the UWU.

[37] In the result the UWU appears to have satisfied the requirements of its rule altering procedures.

[38] The CPSU submit that the Commission’s power to consent to an application “in part” under s.158(2) enables the Commission to make any limiting modifications to a proposed alteration without the necessity of further decision making by a governing body of that organisation. 7 The CPSU further submit that its amended application to alter its eligibility rules to exclude persons at Mount Gambier correctional facility and persons eligible for membership of the ANMF employed in any private prison or correctional facility is such a limiting modification or “reduction in scope”.8

[39] The CPSU therefore contends that to consent to the change “in part”, the Commission need only be satisfied that the CPSU’s original application to alter its eligibility rules has been made under the Rules of the CPSU.

[40] The CPSU’s proposed further rule alteration (to incorporate an exception for the UWU’s and the ANMF’s industrial interests) has the effect of writing down the CPSU’s eligibility rule and therefore falls within the scope and ambit of the original application. Consent to the revised rule giving effect to the various agreements involves consent to the original proposal the subject of the application “in part”. This is so even though the revised rule includes additional text because the additional text is of limitation and not of expansion of the scope of the rule. In the result there is no additional requirement on the CPSU to show further approval under the rules for the revised alteration sought beyond that provided in the originating application.

[41] The CPSU relies on the declaration of its Joint National President, Mr Thomas Lynch, lodged with its originating application. The declaration demonstrates that the proposed alteration to the eligibility rules was unanimously resolved by the Federal Executive on 16 May 2019. The Federal Executive passed a unanimous resolution to direct the Federal Office to conduct an out of session ballot to the Federal Council to approve the proposed alteration to the eligibility rules. On 18 September 2019 following the decision and direction of the Federal Executive, the Federal Secretary initiated an out of session ballot to the Federal Council and the Federal Secretary declared the ballot to be carried as the requisite majority of 50 percent had been reached. On 16 October 2019 the proposed alteration to the eligibility rules was unanimously approved by the National Officers Committee. The Governing Council then voted in an out of session ballot and on 13 December 2019, the ballot was declared to be carried.

[42] In the result the CPSU appears to have satisfied the requirements of its rule altering procedures.

[43] The UWU and the CPSU are also required to comply with Regulation 121 of the RO Regulations. Regulation 121 sets out as follow:

“121 Application for consent to change of name or alteration of eligibility rules of an organisation (s 158 (1))

(1) An organisation may apply to the FWC for the consent of the FWC under subsection 158(1) of the Act to:

(a) change the name of the organisation; or

(b) alter the eligibility rules of the organisation.

(2) An application under subregulation (1) must:

(a) be in the form set out in the Procedural Rules or in a form otherwise approved by the President; and

(b) set out:

(i) if the application is for consent to change the name of the organisation—the proposed name and the reason for the proposal; or

(ii) if the application is for consent to alter the eligibility rules of the organisation—the proposed alteration, the reason for the proposal and the effect of the proposal, in sufficient particularity to allow the proposal to be properly considered; and

(c) contain a declaration:

(i) that the change or alteration was made in accordance with the rules of the organisation; and

(ii) stating the action taken under those rules to make the change or alteration; and

(iii) verifying the facts stated in the application; and

(d) be lodged with the FWC; and

(e) if the application is for consent to alter the eligibility rules of the organisation—be lodged with a copy of the rules that are proposed to be altered.

(3) If an application under subregulation (1) is not in accordance with this regulation, the General Manager must tell the applicant how the application or statement does not comply with the regulation.

(4) An organisation that has a web site must publish on its web site a notice that it has lodged the application mentioned in subregulation (1).”

[44] The CPSU’s original application was signed by Mr Thomas Lynch, Joint National President of the organisation. UWU’s application was signed by Mr Timothy Kennedy, National Secretary of the organisation.

[45] The respective applications by the UWU and the CPSU for consent to the alteration of their respective eligibility rules was in the approved Form F68. Both applications set out the proposed change, the reason for the change and the effect of the change. The applications contain a declaration stating that the change of name and alteration to the eligibility rules were made in accordance with the Rules of the organisation, stating the actions taken under those Rules to make the change of name and alteration to the eligibility rules and verifying the facts stated in the applications.

[46] In the result I am satisfied the UWU and the CPSU have each complied with the requirements of s.158(2) of the RO Act and Regulation 121 of the RO regulations.

[47] I will now turn to consider whether s.158(4) or s.158(5) of the RO Act apply to the present applications.

[48] Sections 158(4) and 158(5) of the RO Act states:

“(4) The FWC 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 FWC, 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 FWC accepts an undertaking from the organisation seeking the alteration that the FWC 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.”

[49] The CPSU has a long history of industrial involvement in corrections in Australia and has particular expertise representing the industrial interests of persons in public correctional facilities in South Australia as set out in its original application.

[50] The UWU has coverage of employees in private correctional facilities in various locations throughout Australia as set out in its application. A significant proportion of its members are employed by Mount Gambier Correctional Centre and ARC – the only two privately operated correctional facilities in South Australia.

[51] The effect of the UWU and CPSU Agreement is for the UWU and the CPSU to recognise each other’s membership in respect of privatised and Government-operated correctional facilities. Specifically, the CPSU recognises the UWU’s active membership of persons employed by Mount Gambier Correctional Centre and ARC in South Australia through its amended application to alter its eligibility rules to exclude persons employed by G4S Australia Pty Ltd or any private operator successor at Mount Gambier Correctional Facility while the UWU recognises the CPSU’s pre-eminence in public prisons and correctional facilities in New South Wales, Western Australia and Victoria, and South Australia.

[52] By way of the UWU and CPSU Agreement, both parties withdrew their respective objections.

[53] Neither organisation now contends in respect of the other’s eligibility rule alteration application that it is another organisation to which persons who would be eligible for membership because of the relevant alteration, could more conveniently belong and would more effectively represent those persons. Moreover there is no material before me on which I could properly form the opinion under s.158(4) of the RO Act that the CPSU (or any other organisation) is an organisation to which relevant employees could more conveniently belong and would not more effectively represent those members in the UWU application; or that the UWU (or any other organisation) is an organisation to which relevant employees could more conveniently belong and would not more effectively represent those employees in the CPSU application. Consequently s.158(4) of the RO Act is not engaged. If I am wrong, I nevertheless consider the executed UWU and CPSU Agreement puts into place undertakings which I accept and which I consider are appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of UWU and the eligibility rules of the CPSU and vice versa. I do not consider there is any material before me which would provide a basis for refusing to consent to the respective eligibility rules alterations under ss.158(6) or (7), or otherwise.

[54] Accordingly, I consent to the minute of amended application of CPSU to alter its eligibility rule and I consent to the application of the UWU to alter is eligibility rule.

[55] The alterations will take effect on Monday 3 May 2021.

DEPUTY PRESIDENT

Written submissions:

CPSU, 27 April 2021
UWU, 27 April 2021

Printed by authority of the Commonwealth Government Printer

<PR729092>

 1   Form F68 as lodged on 20 May 2020 addressing the inconsistency in the previously submitted version on 8 April 2020 whereby the word ‘contained’ was not included in the statement at 1.1

 2   The UWU/CPSU Private Prisons Agreement, cl. 5-7.

 3   The ARC Protocol is set out in Schedule C of the UWU and CPSU Agreement.

 4   UWU and CPSU Agreement cl. 8-10.

 5   Ibid cl. 11-12.

 6   Ibid cl.13-15.

 7   CPSU Submissions dated 27 April 2021 at [7] and MP2 - CPSU Submissions on s 158(2) at [7]

 8   Ibid at [11]-[12]