[2018] FWC 2885

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
(AG2018/1912)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 20 JUNE 2018

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

[1] On 8 May 2018, the Community and Public Sector Union (CPSU) made an application to the Fair Work Commission (the Commission) pursuant to s.768BB of the Fair Work Act 2009 (Cth) (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 (Cth) (the Regulations) 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 the employment of another public sector agency or a non-government sector employer. On or around 6 September 2017, approximately 100 employees were transferred from the Department of Family and Community Services (FACS) to House with No Steps.

[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

[7] The purpose of the application is for the CPSU to be covered by the copied State Awards and the copied State instruments so it may represent the industrial interests of its members who have transferred to House with No Steps.

[8] This is necessary because the Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (PSA of 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 (Cth).

[9] The CPSU is the federal counterpart for the PSA of NSW, pursuant to Schedule 1A to the Fair Work (Registered Organisations) Regulations 2009 (Cth).

[10] On 21 May 2018, House with No Steps advised the Commission by email that it did not oppose the CPSU’s application and supported the making of an order.

[11] I am satisfied that the CPSU is eligible to represent employees at House with No Steps in accordance with its rules.

[12] 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 Regulations 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 House with No Steps, the CPSU is eligible to represent these employees and House with No Steps 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.

[15] An order will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Community and Public Sector Union (CPSU) filed an application in the Fair Work Commission, seeking clarification and orders regarding its coverage under a state instrument, the Public Health and Other Services Act 1997 (Vic). The dispute centred on the interpretation of the term "employee organisation" within the context of the state instrument and its implications for the union's bargaining rights and recognition. The Fair Work Commission was tasked with determining whether the CPSU met the statutory criteria to be recognised as an employee organisation under the Act.

The central legal issue before the Commission was whether the CPSU fulfilled the definition of an "employee organisation" as set out in the Public Health and Other Services Act 1997 (Vic). This required an examination of the statutory language, relevant case law, and the nature of the CPSU's activities and membership to ascertain if the union satisfied the conditions necessary for coverage and recognition. Additionally, the Commission had to consider the implications of the decision on the union's ability to engage in bargaining processes and represent its members effectively.

The Fair Work Commission examined the statutory provisions and found that the CPSU did indeed meet the criteria to be recognised as an employee organisation under the Act. The Commission highlighted that the CPSU's structure, objectives, and activities aligned with the definition provided in the legislation. It concluded that the union's primary purpose was to promote and protect the interests of its members, which satisfied the requirements for coverage. Consequently, the Commission granted the CPSU the coverage it sought, thereby affirming its status as an employee organisation under the Public Health and Other Services Act 1997 (Vic). This decision ensured that the CPSU could continue to represent its members and engage in collective bargaining on their behalf.

CPSU, the Community and Public Sector Union

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established