[2018] FWC 2788

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
(AG2018/1942)

COMMISSIONER JOHNS

MELBOURNE, 18 MAY 2018

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

[1] On 10 May 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. Employees were transferred from the Department of Family and Community Services (FACS) to Achieve Australia Disability Services Limited (Achieve Australia) on or around 22 February 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 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 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 14 May 2018, the Commission sought the position of Achieve Australia in relation to the application.

[10] On 16 May 2018, Achieve Australia consented to the application.

[11] Due to a typographical error in the initial application, the CPSU lodged an amended application correcting the error. Achieve Australia subsequently consented to the amended application.

[12] I am satisfied that the CPSU is eligible to represent employees in Achieve Australia in accordance with its rules.

[13] 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.

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

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

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application by the Community and Public Sector Union (CPSU) for an order concerning the coverage of employees under a state instrument. The dispute arose when the CPSU sought to extend its coverage to include additional employees who were not previously covered by the state instrument. The Commission was tasked with determining whether the application met the criteria set out in the relevant legislation, specifically section 768BB of the Fair Work Act.

The primary legal issue the Commission needed to address was whether the CPSU had demonstrated that the proposed changes to the coverage of employees were necessary and appropriate. This involved considering the union's ability to effectively represent the interests of the employees in question and whether the changes would promote the fair treatment of employees. Additionally, the Commission had to assess whether the application complied with the procedural requirements stipulated in section 768BB.

The Fair Work Commission found that the CPSU had adequately demonstrated the necessity and appropriateness of extending its coverage to include the additional employees. The Commission concluded that the union was capable of effectively representing the interests of these employees and that the changes would not adversely affect the fair treatment of employees. The Commission also determined that the application complied with the procedural requirements outlined in section 768BB. Consequently, the Commission granted the CPSU's application and issued an order extending the union's coverage to include the additional employees as sought.

As a result of the Commission's decision, the CPSU was authorised to represent the additional employees under the state instrument. The order specified the terms and conditions of the extended coverage, including the period for which the order would be in effect and any other relevant details. The Commission's decision provided clarity and certainty for the parties involved, ensuring that the union could effectively advocate for the employees within the expanded scope of its coverage.

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