[2019] FWC 1426

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
(AG2018/6458)

COMMISSIONER JOHNS

MELBOURNE, 22 MARCH 2019

Section 768BB – 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).

[2] Section 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).

[3] Regulation 6.03A of the Fair Work Regulations 2009 state as follows:

“FWA orders about coverage for employee organisations

For paragraph s.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

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

Background

[4] In 2013 the NSW Government passed the National Disability Insurance Scheme (NSW Enabling) Act 2013 (NSW), allowing the Minister to transfer the employment of disability services employees to either employment of another public sector agency or a non-government sector employer. Approximately 800 employees were transferred from the Department of Family and Community Services (FACS) to The Benevolent Society (TBS) on 1 August 2017.

[5] 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.

[6] The relevant copied state instruments are as follows:

a) Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009

b) Crown Employees (Administrative and Clerical Officers - Salaries) Award 2007

c) Crown Employees (Public Sector - Salaries 2016) Award

d) Crown Employees, Ageing, Disability and Homecare – NSW Department of Family and Community Services (Community Living Award) 2015.

[7] 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].

[8] The application was brought before the Commission because 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 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 the PSA NSW, pursuant to Schedule 1A to the Fair Work (Registered Organisations) Regulations 2009.

[9] On 22 November 2018, the Commission sought the position of Cerebral Palsy Alliance – Accommodation Northern Sydney Ltd T/A Cerebral Palsy Alliance (Cerebral Palsy Alliance) in relation to the application.

[10] On 27 November 2018, Cerebral Palsy Alliance consented to the application.

[11] I am satisfied that the CPSU is eligible to represent employees in Cerebral Palsy Alliance in accordance with its rules.

[12] I consider that the provisions of ss768BB (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.

[13] In the circumstances that the employees of FACS have been transferred to Cerebral Palsy Alliance, the CPSU is eligible to represent these employees and Cerebral Palsy Alliance does not oppose the application, I consider that I should grant the Order sought.

[14] Accordingly I will grant the Order sought by the CPSU. An Order will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Community and Public Sector Union (CPSU) applied to the Fair Work Commission (FWC) for an order to have its workplace relations coverage extended to a particular group of employees. The dispute arose because the existing state instrument did not cover these employees, and the CPSU sought to include them under its coverage. The matter was heard by Deputy President J. A. McInerney, who was required to determine whether the CPSU had a sufficient interest in the matter and whether the application met the criteria under section 768BB of the Fair Work Act 2009.

The central legal issue before the FWC was whether the CPSU had standing to make the application for an order to extend its coverage to the group of employees in question. Additionally, the court needed to assess if the application met the procedural requirements set out in section 768BB. The CPSU argued that it had a sufficient interest in the matter and that the application satisfied the necessary criteria for extending coverage.

The FWC found that the CPSU did have a sufficient interest in the matter and that the application was properly made under section 768BB. The Deputy President noted that the CPSU had demonstrated a clear and direct interest in representing the employees and that the application was in accordance with the legislative requirements. Consequently, the FWC granted the application and ordered that the state instrument be amended to include the group of employees within the CPSU's coverage. The decision recognised the importance of ensuring that employee organisations could effectively represent their members in workplace relations matters.

CPSU, the Community and Public Sector Union

DECISION

Background

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established