CPSU, the Community and Public Sector Union

[2022] FWC 2015

[2022] FWC 2015

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

(AG2022/2305)

COMMISSIONER WILSON MELBOURNE, 1 August 2022

S 768BB – Application for an order about coverage for employee organisations under a state instrument

1. On 6 July 2022, the Community and Public Sector Union (CPSU) made an application to the Fair Work Commission (Commission) pursuant to s.768BB of the Fair Work Act 2009 (FW Act).

1. s. 768BB of the FW 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 1 July 2022 the TasTafe (Skills and Training Business) Act 2021 (Tas) commenced. This Act provided for the transition of TasTafe to a government business model as a body corporate which is an instrumentality of the Crown, and that all the functions, powers assets, rights, liabilities, contracts and employees of the former TasTafe transferred to the new TasTafe on 1 July 2022.

1. Pursuant to Part 6-3A, Division 3 of the Act, upon this transfer, a number of state awards and agreements became copied state awards and copied state instruments.

1. The relevant copied state instruments are as follows:

a)The Tasmanian State Services Award

b)The Public Sector Union Wages Agreement

1. The purpose of the application is that the Commission makes an Order that the CPSU is covered by the copied State instruments mentioned in [6].

1. The application was brought before the Commission because the Community and Public Sector Union (State Public Services Federation Tasmania) Inc (SPSFT).is the state registered employee organisation covered by the state instruments and it is not a registered organisation for the purposes of the Fair Work (Registered Organisations) Act 2009. The CPSU is the federal counterpart for SPSFT, pursuant to Schedule 1A to the Fair Work (Registered Organisations) Regulations 2009.

1. On 8 July 2022, the Commission sought the position of TasTafe in relation to the application.

1. On 29 July 2022, TasTafe confirmed that they did not oppose the orders sought.

1. I am satisfied that the CPSU is eligible to represent employees of TasTafe in accordance with its rules.

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.

1. In the circumstances that the CPSU is now eligible to represent the employees of TasTafe and TasTafe does not oppose the application, I consider that I should grant the order sought.

1. Accordingly I will grant the order sought by the CPSU.

1. An order will be issued with this decision.

COMMISSIONER

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