[2019] FWC 1697

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
v
Australian Unity Home Care Services Pty Ltd
(AG2018/5390)

COMMISSIONER JOHNS

SYDNEY, 16 APRIL 2019

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

[1] On 25 September 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 (Cth)(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 (Cth) 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 20 February 2016, approximately 400 employees were transferred from the New South Wales Department of Family and Community Services (FACS) to Australian Unity Home Care Services Pty Ltd T/A Australian Unity (AUHCS).

[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 (Home Care Service of New South Wales - Administrative Staff) Award 2012;

(b) Crown Employees (Public Sector –Salaries 2015) Award.

[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 paragraph [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 (Cth).

[9] On 27 September 2018, the Commission sought the position of AUHCS in relation to the application.

[10] The CPSU lodged an amended application on 27 September 2018 that accurately reflected the copied State Awards.

[11] On 17 October 2018, AUHCS confirmed that they did not oppose the orders sought.

[12] I am satisfied that the CPSU is eligible to represent employees in AUHCS 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 AUHCS, the CPSU is eligible to represent these employees and AUHCS do 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 the Community and Public Sector Union (CPSU) and Australian Unity Home Care Services Pty Ltd. The dispute centered on whether the union was entitled to be the exclusive bargaining agent for the employees of the company under the provisions of the Fair Work Act 2009. The Commission was required to determine the appropriate coverage for employee organisations in light of the specific industrial instrument in place. The legal issues before the court involved the interpretation of Section 768BB of the Act, which allows for an application to be made to determine coverage for employee organisations under a state instrument. The CPSU sought to be recognised as the exclusive bargaining agent for the employees of Australian Unity Home Care Services Pty Ltd, while the company contested the union’s application, arguing that it did not meet the criteria for exclusive bargaining rights.

The Commission examined the specific provisions of the relevant industrial instrument and the requirements for exclusive bargaining rights under the Act. It considered whether the CPSU met the criteria for recognition as the exclusive bargaining agent and whether there were any factors that would preclude such recognition. The Commission also took into account the principles of fairness and the promotion of efficient bargaining, as well as the need to balance the rights of employers and employees. After careful consideration, the Commission determined that the CPSU met the necessary criteria for recognition as the exclusive bargaining agent for the employees of Australian Unity Home Care Services Pty Ltd. It found that the union had demonstrated sufficient support among the employees and that its recognition would not be detrimental to the efficient conduct of the business. The Commission concluded that the CPSU was entitled to be the exclusive bargaining agent for the employees of the company under the state instrument.

The Fair Work Commission made an order recognising the CPSU as the exclusive bargaining agent for the employees of Australian Unity Home Care Services Pty Ltd. The company was required to enter into a certified agreement with the union and to facilitate its role as the exclusive bargaining agent. The decision provided clarity on the application of Section 768BB of the Act and the criteria for recognition of employee organisations as exclusive bargaining agents. It reinforced the importance of efficient bargaining and the need to balance the rights of employers and employees in the workplace.

CPSU, the Community and Public Sector Union v Australian Unity Home Care Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established