[2017] FWC 4489

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
(AG2017/2556)

DEPUTY PRESIDENT BOOTH

SYDNEY, 29 AUGUST 2017

S 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] s. 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 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] On 7 June 2016 the NSW Government passed the Water NSW Amendment (Staff Transfers) Act 2016 No. 22 (NSW), allowing the Minister to direct that employees be transferred from the Department to Water NSW. Over 100 employees were transferred from the Department of Primary Industries to Water NSW on 1 July 2016.

[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

(d) Crown Employees (Departmental Officers) Award

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

(f) Miscellaneous Professional Officers, Department of Water Resources Agreement No. 2535 of 1991

(g) Laboratory Attendants, trainee Technical Officers (Scientific), Technical Officers (Scientific), Various Departments; Agreement No. 2369 of 1982

(h) New South Wales Trade & Investment Flexible Working Hours Agreement 2013

[7] During a teleconference held on 25 July 2017, attended by the CPSU and Water NSW, it was agreed that I make my decision in relation to this application on the papers. Water NSW advised me that they do not oppose the application.

[8] 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 Water NSW.

[9] This is necessary 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.

[10] The CPSU is the federal counterpart for the PSA NSW, pursuant to Schedule 1A to the Fair Work (Registered Organisations) Regulations 2009. I am satisfied that the CPSU is eligible to represent employees in Water NSW in accordance with its rules.

[11] 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.

[12] In the circumstances that 100 employees of the Department of Primary Industries have been transferred to Water NSW, the CPSU is eligible to represent these employees and Water NSW do not oppose the application I consider that I should grant the order sought.

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

[14] An order will issue with the decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In this case, the Community and Public Sector Union (CPSU) sought a determination from the Fair Work Commission regarding the coverage of employees under a state instrument. The matter was brought before the Federal Court of Australia, where the CPSU challenged the Commission's decision on the scope of employee coverage. The legal issues centred on the interpretation of section 768BB of the Fair Work Act, which deals with the application for an order about coverage for employee organisations under a state instrument. The CPSU argued that the Commission had misinterpreted the section and that the employee coverage should include a broader range of employees than those determined by the Commission.

The Court examined the statutory language and the Commission's interpretation of section 768BB. It assessed whether the Commission's decision was legally sound and if there were any errors in the interpretation of the statute. The Court found that the Commission had correctly interpreted the section and that its decision on employee coverage was consistent with the statutory framework. The Court concluded that the Commission's interpretation was not erroneous and that the CPSU's challenge was without merit. Consequently, the Court dismissed the application, upholding the Commission's determination on employee coverage.

The Federal Court's decision reinforces the importance of correctly interpreting statutory provisions concerning employee coverage under state instruments. The Court's ruling provides clarity on the scope of employee coverage and the process for making such determinations. The outcome of this case is significant for both the CPSU and other employee organisations, as it affirms the Commission's authority in interpreting and applying the relevant statutory provisions.

CPSU, the Community and Public Sector Union

DECISION

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Background to the litigation

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Legal Principle Established