CPSU, the Community and Public Sector Union

[2022] FWC 3021

[2022] FWC 3021

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.768BB - Application for an order about coverage for employee organisations under a state instrument

CPSU, the Community and Public Sector Union

(AG2022/4412)

DEPUTY PRESIDENT CROSS SYDNEY, 15 NOVEMBER 2022

Application for an order about coverage for employee organisations under a state instrument

1. This decision concerns an application made by the Community and Public Sector Union (CPSU) pursuant to s. 768BB of the Fair Work Act 2009 (the Act).

1. s. 768BB of the Act provides as follows:

FWC orders about coverage for employee organisations

(1)   The FWC may make an order that:

(a)a copied State instrument for a transferring employee that would, or would be likely to, cover an employee organisation (the first employee organisation ) in relation to the transferring employee because of subsection 768AN(2) does not, or will not, cover the organisation; and

(b)another employee organisation (the second employee organisation ) is, or will be, covered by the copied State instrument in relation to the employee.

(2) When making an order under subsection (1), the FWC must consider whether the second employee organisation is a federal counterpart (within the meaning of section 9A of the Registered Organisations Act) of the first employee organisation.

(3)   The regulations may:

(a)prescribe circumstances in which the FWC may make an order for the purposes of subsection (1); and

(b)otherwise make provision in relation to the making of the order.

(4)   An order under subsection (1) must be made in accordance with any regulations that are made for the purposes of subsection (3).

1. Regulation 6.03A of the Fair Work Regulations 2009 states as follows:

FWA orders about coverage for employee organisations

For paragraph 768BB(3)(a) of the Act, a circumstance in which FWA may make an order mentioned in subsection 768BB(1) of the Act is that the order is to be made:

(a)on FWA’s own initiative; or

(b)on application to FWA by a transferring employee, or a person who is likely to be a transferring employee; or

(c)on application to FWA by the new employer, or a person who is likely to be the new employer; or

(d)on application to FWA by an employee organisation that is entitled to represent the industrial interests of an employee mentioned in paragraph (b).

1. On 21 October 2022, the CPSU sought an order that the CPSU is covered by the copied state instrument, being the Roads and Maritime Services Consolidated Salaried Award 2019.

Background

1. In 2021, the NSW Parliament passed the Heavy Vehicle Legislation Amendment (National Regulator) Act 2021 (NSW) (“the HVLA Act”), giving effect to the transfer of functions under the Heavy Vehicle National Law 2013 (NSW) from Transport for NSW (TfNSW) to the National Heavy Vehicle Regulator (NHVR). Included in the HVLA Act is the power for the Minister to transfer employees from TfNSW to NHVR.

1. On 1 August 2022, approximately 300 employees were transferred from TfNSW to NHVR. NHVR is a national system employer.

1. In accordance with Part 6-3A, Division 3, subdivision B, of the Act, the Roads and Maritime Services Consolidated Salaried Award 2019 became a copied State instrument in the form of a copied State Award.

1. The Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (PSA NSW) is the state registered employee organisation covered by the State Award and represents members covered by the State Award whose employment was transferred to the NHVR.

1. The CPSU is named as the federal counterpart of the PSA NSW (item 126 of Schedule 1A, Fair Work (Registered Organisations) Regulations 2009 (Cth). Therefore, the CPSU is the PSA NSW’s federal counterpart within the meaning of s 9A of the Fair Work (Registered Organisations) Act 2009.

1. The PSA NSW is not a registered organisation of employees for the purposes of the Fair Work (Registered Organisations) Act 2009 (Cth), and therefore cannot be an employee organisation for the purpose of the Act. Further, the PSA NSW is no longer a transitionally recognised organisation of employees for the purposes of the Fair Work (Registered Organisations) Act 2009 (Cth) or the Act.

1. The CPSU is eligible to represent the employees of NHVR in accordance with Rule 2, Part II(B)(iii), of the CPSU, the Community and Public Sector Union, Chapter A – General Rules. Due to the transfer of employees from TfNSW to the NHVR, the PSA NSW no longer has coverage of those members. For the reasons outlined above, the CPSU now has coverage of these members.

1. I consider that the provisions of ss. 768BB (1), (2) and (3) of the Act are satisfied and in particular that in accordance with s. 768BB (3), regulation 6.03A of the Fair Work Regulations 2009 is satisfied. Therefore, I consider that I may make the order sought. Accordingly I will grant the order sought by the CPSU. An order will be issued with this Decision.

DEPUTY PRESIDENT

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