Dalrymple Bay Coal Terminal Pty Ltd & Australian Workers' Union, The (002N)
[2016] FWCFB 4363
•5 JULY 2016
| [2016] FWCFB 4363 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work (Registered Organisations) Act 2009
s.137F RO Act - Orders reflecting State representation orders
(C2016/3795)
VICE PRESIDENT WATSON |
|
Dalrymple Bay Coal Terminal Pty Ltd & Australian Workers' Union, The (002N) – Order reflecting State representation order – Pre-requisites satisfied – Order appropriate – Fair Work (Registered Organisations) Act 2009, s.137F.
Introduction
[1] On 13 May 2016, Dalrymple Bay Coal Terminal Pty Ltd (Dalrymple Bay) made an application under s.137F of the Fair Work (Registered Organisations) Act 2009 (Registered Organisations Act) for an order reflecting a State representation order.
[2] The matter was listed for mention before Vice President Watson on 24 May 2016. Directions were subsequently issued directing that the application be served on the following registered organisations, transitionally recognised associations or recognised State-registered associations:
(a) Australian Workers' Union;
(b) Australian Workers' Union of Employees, Queensland;
(c) Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union;
(d) Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Employees Queensland;
(e) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia;
(f) Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland;
(g) Construction, Forestry, Mining and Energy Union;
(h) Electrical Trades Union of Employees, Queensland; and
(i) any other persons directed by the Commission.
[3] The directions also required all unions served with the application to indicate a position in respect of the proposed order, and if opposed the basis upon which the order is opposed. The application was not opposed.
[4] The Australian Workers’ Union (AWU) sought to be joined as an applicant in the proceedings under s.337H(a) of the Registered Organisations Act. Leave was granted to amend the application to provide that it is joined as an applicant.
Background
[5] Since 1996, pursuant to representation orders made by the Queensland Industrial Relations Commission and the Australian Industrial Relations Commission, the Australian Workers’ Union of Employees, Queensland (AWUEQ) has had the exclusive right to represent the industrial interests of certain classifications of employees at Dalrymple Bay. Unless otherwise ordered, the AWUEQ will cease to have standing in the federal industrial relations system from 1 January 2017. The relevant union will be the AWU.
[6] Both Dalrymple Bay and the AWU make application under s.137F of the Registered Organisations Act for an order reflecting a State representation order, the purpose of which is to maintain the status quo at Dalrymple Bay.
Legislative Provisions
[7] Section 137F of the Registered Organisations Act permits the Commission to make an order reflecting a State representation order where certain threshold matters are satisfied. It states as follows:
“137F FWC may make orders reflecting State representation orders
(1) If:
(a) the eligibility rules of an organisation of employees have been altered with the consent of the General Manager under section 158A; and
(b) because of the alteration, members of an association of employees that is registered under a State or Territory industrial law (a State registered association) have become eligible for membership of the organisation; and
(c) immediately before the alteration took effect, an order (a State representation order) was in force that:
(i) was made by a State industrial authority in relation to the State registered association; and
(ii) was an order of the same kind as, or of a similar kind to, an order that the FWC could make under this Chapter in relation to an organisation;
the FWC may, on application by the organisation or by a party to the State representation order, make an order in relation to the organisation that is to the same effect, or substantially the same effect, as the State representation order.
(2) The order under subsection (1) applies to each organisation that is:
(a) a federal counterpart of the State registered association; or
(b) a federal counterpart of any other association of employees:
(i) that is registered under a State or Territory industrial law; and
(ii) to which the State representation order applied.”
[8] It is submitted that each of the threshold matters is satisfied and that the Commission should make the proposed orders. We will now deal with each of these matters in turn.
Alteration of Eligibility Rules – ss. 137F(1) (a) and (b)
[9] The AWU’s eligibility Rules were altered on 19 December 2013 with the consent of the General Manager under s.158A of the Registered Organisations Act. The effect of the alteration was the insertion of a new Rule 6A titled “Additional Eligibility for admission to membership in the State of Queensland”. The new rule replicates the eligibility rules in the AWUEQ Rules. The AWUEQ is a state registered association, being an association of employees that is registered under a State or Territory industrial law, namely the Industrial Relations Act 1999 (Qld).
[10] As a result of the new Rule 6A, a number of workers who are eligible for membership of the AWUEQ and were not previously eligible for membership of the AWU, have become eligible for membership of the AWU.
State representation order – s.137F(1)(c)
[11] On 31 May 1996, the Dalrymple Bay Coal Terminal Production Employees Representation Order was made. The order was made by the Queensland Industrial Relations Commission, a state industrial authority. It is a representation order made pursuant to s.45 of the Industrial Relations Act 1990 (Qld).
[12] The Dalrymple Bay Coal Terminal Production Employees Representation Order 2007 was made to mirror the 1996 order in the federal industrial relations system. It did not replace or supersede the 1996 order as there was no power under the Workplace Relations Act 1996 (Cth) to do so.
[13] The 1996 order has not expired or been terminated. It remains in force and was in force immediately before the alteration of the AWU’s rules.
Standing
[14] Dalrymple Bay has standing to apply for the proposed order as it is a party to the Dalrymple Bay Coal Terminal Representation Order. The AWU has standing to apply for the proposed order as it is an organisation under the Registered Organisations Act and a party to the proposed order.
Federal Counterpart – s.137F(2)
[15] Pursuant to s.9A(1) of the Registered Organisations Act, and regulation 8A and schedule 1A of the corresponding regulations, the AWU is the federal counterpart of the AWUEQ.
Conclusion
[16] We are satisfied that each of the pre-requisites for making an order under s.137F are satisfied. We further consider that is appropriate to make an order to substantially the same effect as the 1996 State order. We issue such an order in conjunction with handing down this decision.
VICE PRESIDENT
Final written submissions:
Dalrymple Bay Coal Terminal Pty Ltd on 10 June 2016.
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