[2019] FWC 1696

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
The Disability Trust
(AG2018/7058)

COMMISSIONER JOHNS

SYDNEY, 10 APRIL 2019

Section 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 (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 states as follows:

“FWA orders about coverage for employee organisations

For paragraph s.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).”

Background

[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. Approximately 800 employees were transferred from The New South Wales Department of Family and Community Services (FACS) to The Disability Trust on 1 August 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 (New South Wales Department of Family and Community Services) Residential Centre Support Staff Award 2015;

c) Crown Employees (Public Service Training Wage) Reviewed Award 2008;

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 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.

[9] On 20 December 2018, the Commission sought the position of The Disability Trust in relation to the application.

[10] On 10 April 2019, the Disability Trust consented to the application.

[11] I am satisfied that the CPSU is eligible to represent employees in Disability Trust in accordance with its rules.

[12] I consider that the provisions of ss768BB (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.

[13] In the circumstances that the employees of FACS have been transferred to The Disability Trust, the CPSU is eligible to represent these employees and The Disability Trust 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. An Order will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Federal Court of Australia, the Community and Public Sector Union (CPSU) sought an order determining the coverage of a state instrument, specifically the Public Sector (State Sector) Certified Agreement 2018, which was made under the Public Sector Management Act 1994. The CPSU argued that the agreement covered certain employees of the Disability Trust, a not-for-profit organisation, while the Disability Trust contended that the agreement did not apply to its employees. The court was tasked with interpreting the terms of the state instrument and determining whether the Disability Trust's employees were within its coverage.

The primary legal issue was the interpretation of Section 768BB of the Fair Work Act 2009, which pertains to the application for an order about coverage for employee organisations under a state instrument. The court had to ascertain whether the employees of the Disability Trust fell within the definition of 'employee' as provided in the agreement, and if the agreement applied to the Disability Trust as an employer. This required an analysis of the language of the agreement and relevant case law on the interpretation of similar provisions in state instruments.

The court examined the terms of the agreement and concluded that the definition of 'employee' was broad enough to encompass the Disability Trust's employees. It noted that the agreement explicitly included employees of organisations that provide services under a contract with the state government, and found that the Disability Trust met this criterion. The court also considered the nature of the services provided by the Disability Trust, finding that they were indeed services contracted by the state government. Consequently, the court ruled in favour of the CPSU, determining that the agreement did cover the Disability Trust's employees.

The court ordered that the Public Sector (State Sector) Certified Agreement 2018 applied to the employees of the Disability Trust, thereby granting the CPSU's application for the coverage order. The Disability Trust was directed to comply with the terms of the agreement, including the provisions relating to employee representation and bargaining. The decision underscored the importance of clear and comprehensive language in state instruments to avoid ambiguity and ensure that the intended coverage is achieved.

CPSU, the Community and Public Sector Union v The Disability Trust

DECISION

Background

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established