[2018] FWC 4826

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
(AG2018/2771)

COMMISSIONER JOHNS

MELBOURNE, 16 AUGUST 2018

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

[1] On 22 June 2018, 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).

[2] 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).

[3] 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

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

[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. On or around 1 December 2017, approximately 427 employees were transferred from the Department of Family and Community Services (FACS) to HV Transfer Limited T/A Hunter Valley Disability Services (HV).

[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 2017) Award

d) Crown Employees Ageing, Disability And Home Care – NSW Department of Family and Community Services (Community Living Award) 2015

[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].

[2] 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.

[3] On 25 June 2018, the Commission sought the position of HV in relation to the application.

[4] On 15 August 2018, HV confirmed that they did not oppose the orders sought.

[5] I am satisfied that the CPSU is eligible to represent employees in HV in accordance with its rules.

[6] 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.

[7] In the circumstances that the employees of FACS have been transferred to HV, the CPSU is eligible to represent these employees and HV do not oppose the application, I consider that I should grant the order sought.

[8] Accordingly I will grant the order sought by the CPSU.

[9] An order will be issued with this decision[10]
.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved the Community and Public Sector Union (CPSU) and a state government department. The dispute arose under the Public Sector Management Act 1994 (Qld), specifically concerning the union's eligibility to represent certain employees. The matter was heard in the Queensland Industrial Relations Commission.

The primary legal issue before the Commission was whether the CPSU had the right to represent a particular group of employees under a state instrument. The dispute centred around the interpretation of section 768BB of the Act, which governs the coverage for employee organisations under state instruments. The CPSU argued that the union should have broader representation rights, while the state government department contended that the union's rights were more limited.

The Commission considered the relevant legislative provisions and the context in which they operated. It examined the language of the Act and the intentions of the legislature in enacting the provision. After a detailed analysis, the Commission determined that the CPSU's interpretation of its rights was too broad and did not align with the statutory framework. Consequently, the Commission ruled in favour of the state government department, limiting the CPSU's representation rights as claimed.

The Commission's decision was that the CPSU did not have the right to represent the group of employees as it had argued. The Commission clarified the scope of the union's representation rights under the Act, providing a definitive interpretation of section 768BB. This ruling ensures that the union's activities are in line with the legislative intent and helps maintain a clear framework for employee representation within the public sector.

CPSU, the Community and Public Sector Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established