In the making of the Rockhampton Regional Council Treatment Plant Operators Certified Agreement 2022

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	In the making of the Rockhampton Regional Council Treatment Plant Operators Certified Agreement 2022 [2024] QIRC 264
PARTIES:	Rockhampton Regional Council and The Australian Workers' Union of Employees, Queensland and Plumbers and Gasfitters Employees' Union Queensland, Union of Employees
CASE NO:	CB/2024/37
PROCEEDING:	Application in proceedings
DELIVERED ON:	14 November 2024
MEMBER: HEARD AT:	Caddie IC On the papers
ORDERS:	1. The proposed Rockhampton Regional Council Treatment Plant Operators Certified Agreement 2022 is not currently capable of being certified with the PGEU listed as a party, due to a demarcation dispute existing with the AWU. *2. Pursuant to s 486(1) of the Industrial Relations Act* 2016 (Qld), I find that it is** appropriate for the demarcation dispute to be referred to the Full Bench for Hearing prior to the substantive matter being remitted back for finalisation.
CATCHWORDS:	BARGAINING – application for certification of an agreement – requirements for certification – interlocutory issue raised – where an employee union objects to the inclusion of another employee union as a party to the proposed agreement – whether the proposed agreement is capable of being certified with the other union as a party – whether the requirement under s 200 of the Industrial Relations Act 2016 (Qld) for each 'relevant employee organisation' to be a party to an agreement operates to exclude employee organisations that are not otherwise relevant – where the existence of a demarcation dispute prevents certification.
LEGISLATION: CASES:	Industrial Relations Act 2016 (Qld) ss 165, 168, 171, 189, 193, 196, 197, 200, 221, 479, 486. R v Dunlop Rubber Australia ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 7.

Reasons for Decision

Introduction

In what should have been a routine matter, Rockhampton Regional Council applied to certify the Rockhampton Regional Council Treatment Plant Operators Certified Agreement 2022. This is a replacement agreement applying to nine workers employed as sewerage treatment plant operators and water treatment plant operators.[1]
[1] These are employees covered by the Queensland Local Government Industry (Stream B) Award State 2017.
My preliminary review of the application and the proposed Agreement identified all the usual tests for certification appeared to have been met. The proposed Agreement was explained and given to employees for approval.[2] A valid majority of employees covered by the proposed Agreement voted to approve it.[3] Along with Council, the Australian Workers Union, Queensland, and the Plumbers & Gasfitters Employee's Union of Queensland; the two named union parties in the proposed Agreement; had signed it.[4] The application was made within 21 days of all named parties signing.[5]
[2] Industrial Relations Act 2016 (Qld) ('IR Act') s 171.
[3] Ibid s 197.
[4] Ibid s 196(1).
[5] Ibid s 189(3).
The matter was listed for hearing on 18 June 2024.
The AWU advised on 14 June 2024 of their objection to the inclusion of the PGEU as a named party to the proposed Agreement. Their objection was based on there being no work classifications in the Agreement covered by the PGEU eligibility rules, and the PGEU was not a party to the Award.
I held a mention on 17 June, and conciliation conferences on 18 June and 4 July 2024 to provide the union parties with an opportunity to discuss the objection and determine whether it could be resolved. It was consented to by the parties that I would attempt to both conciliate the objection and hear the certification and termination applications should they proceed.[6] I also sought and received confirmation that Council would administratively apply the benefit of the proposed Agreement to the employees while the disputed matter was being resolved.
[6] T 1-6 ll 16-25, 1-7 ll 30-35 (17 June 2024).
The PGEU responded to the objection stating they did cover classifications under the Agreement and had current financial members. They provided material during and between the conferences to outline the work being undertaken by one member, who they submitted as part of his role undertook duties which would bring him within coverage. This member was the relevant employee who sought their Union's participation in the negotiations.
The AWU maintained its objection. I sought submissions and affidavit material from the parties to answer the following question:
Is the Rockhampton Regional Council Treatment Plant Operators Certified Agreement 2022 ('the proposed Agreement') capable of being certified with the Plumbers & Gasfitters Employees' Union, Queensland, Union of Employees as a party?
That is the question subject to this decision. In answering this question, the AWU submits I must determine whether it is possible to certify the Agreement if the PGEU does not meet the definition of 'relevant employee organisation.' Alternatively, the PGEU submits I should take the view that as long as the AWU is a party, the 'each relevant employee organisation' test would be satisfied. On this view, other employee organisations like the PGEU with whom the Agreement was made would not be excluded, and the Agreement could be certified. The coverage issue could then be separately determined post-certification.
Council declined to make any submissions other than to say it has no specific objection to the PGEU becoming a party to the proposed agreement.
For the reasons that follow, I am persuaded by the AWU's submissions that the proposed Agreement cannot be certified with the PGEU as a party. I say that in the context of the present circumstances where their standing as a relevant employee organisation is disputed. The dispute regarding eligibility and representation of the industrial interests of treatment plant operators by the PGEU is a matter that can only be determined by the Full Bench.
What requirements are set out in the IR Act about parties for certified agreements?
Certified agreements may be made between an employer and one or more employee organisations that represent or are entitled to represent employees who are eligible to be members.[7]
[7] Ibid s 165.
A party to a certified agreement or proposed certified agreement is defined as 'a person or an organisation that is or will be covered by the agreement.'[8] A 'relevant employee organisation' is defined as follows.[9]
Relevant employee organisation, in relation to a bargaining instrument or proposed bargaining instrument, means—
(a)if a modern award or bargaining award covers an employer under the bargaining instrument or proposed bargaining instrument, or would cover the employer apart from an award under the Commonwealth Fair Work Act — an employee organisation that is covered by the award; or
(b)if paragraph (a) does not apply — an employee organisation that is entitled to represent the industrial interests of employees of the employer.[10]
[8] Ibid s 168, definition of 'party'.
[9] Emphasis added.
[10] IR Act (n 2), s 168, definition of 'relevant employee organisation'.
It is not disputed that the PGEU is not covered by the applicable Award. They are not a party to or covered by the current or predecessor Certified Agreement. Whether the PGEU is entitled to represent the industrial interests of employees covered by the proposed Agreement is in dispute.
The Act also allows for circumstances where a relevant employee may ask a relevant employee organisation of which they are a member to represent them in the negotiations before an agreement is made. The employer must provide the organisation with a reasonable opportunity to do that.[11]
[11] Ibid s 171(4).
The PGEU indicated this occurred in relation to the negotiations for this Agreement. They have a member who made a request and Council thereafter enabled the PGEU to represent that member. This included agreement to the insertion of the PGEU as a party. The AWU indicates the employee was not eligible to be a member of the PGEU, and the PGEU was not legitimately able to represent their industrial interests, let alone be listed as a party.
Section 200 sets out requirements about parties specifically relevant to certification:[12]
[12] Emphasis added.
200Agreements — requirements about parties
(1)The commission must be satisfied —
…
(b)for an agreement to be made with an employee organisation, other than an agreement for a new business — each relevant employee organisation is a party to the agreement; or
…
Is the PGEU entitled to represent the industrial interests of treatment plant operators?
All roads lead to this question.
Given the PGEU is not covered by the Award underpinning the proposed Agreement, it becomes relevant whether the PGEU is entitled to represent the industrial interests of treatment plant operators. This is also relevant to the test in s 165, which notes an employee organisation party making a certified agreement must represent or be entitled to represent employees who are, or are eligible to be, members of the organisation. As the AWU notes in their submissions, it is a long-established principle that where there is a person who is eligible for membership of a union in accordance with its eligibility rules, it is sufficient grounds to make the union entitled to represent the industrial interests of that person.[13]
[13] Per R v Dunlop Rubber Australia ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 7.
This is not a determination I have the jurisdiction to make sitting alone. The Full Bench has the power to make orders about representation rights and demarcation disputes.[14] I do consider, having looked at the submissions of the AWU and PGEU, that this is a matter of genuine controversy.
[14] IR Act (n 2) s 479.
How is this relevant to any decision to certify?
The PGEU argues that their entitlement to represent the industrial interests of treatment plant operators is not relevant. They argue the only relevant considerations are the specific provisions in the IR Act setting out the pre-conditions and preclusions to certification.[15] Section 193 broadly sets the parameters for the decision:
[15] Set out in ch 4 pt 5 of the IR Act (n 2).
193     Requirements for commission's decision
(1) The commission must grant a part 5 application if —
(a)      each requirement under subdivision 2 is satisfied for the application; and
(b)the commission is not required under subdivision 3 to refuse to grant the application.
(2)      if subsection (1) does not apply, the commission must refuse to grant the application.
(3)      Subsection (2) applies subject to section 194.
The PGEU acknowledges that consideration of the s 200 party requirements is a matter of which the Commission must be satisfied under s 193(1)(a) and consequently s 193(2). However, they argue s 200 cannot be read to mean only relevant employee organisations can be parties to an agreement. The requirement for each such organisation to be a party, does not exclude others from being listed as a party. The Commission would be free to proceed as the AWU is currently the only undisputed relevant employee organisation party to the Agreement, and with their inclusion, the requirement for each relevant employee organisation to be listed would be satisfied.
If I were to accept that proposition, the question becomes on what basis would the Agreement include other employee organisations not otherwise relevant? To answer this question, I must consider any other pathways contemplated by the Act.
As discussed above, the definition of party includes an organisation that is or will be covered by the Agreement. The PGEU is not covered by the current Agreement but argue they will be covered in the proposed Agreement due to the operation of cl 1.2: Parties Bound.
The circumstances by which an employee organisation is covered by a Certified Agreement are set out in s 221(2) of the Act, which relevantly provides:
221 Who is covered by a bargaining instrument
…
(2)A bargaining instrument covers an employee organisation if —
(a) the instrument is made with the organisation; or
(b)for an instrument made between employees and the employer—
…
(ii)the organisation satisfies the commission the organisation is a relevant employee organisation and has at least 1 member to whom the instrument applies and who has asked the organisation to give the notice; and
(iii)the instrument itself, or a decision of the commission certifying or making the instrument, states that the instrument covers the organisation.
…
The PGEU argues the proposed Agreement was made with them, following a request by a relevant employee. However, an agreement can only be made with an employee organisation who represents or is entitled to represent employees who are or are eligible to be members of that organisation. That question is in dispute.
Further, while this is not an agreement made directly between the employer and employees, the organisation must still convince the Commission it is a relevant employee organisation with at least one member.
Neither of these pathways advance the case of the PGEU that organisations do not have to be relevant employee organisations for the s 200 requirements to be satisfied.
For agreements made between an employer and employees, there is also a pathway provided by the instrument itself or a decision of the Commission to certify stating an organisation is covered. In this case, the proposed agreement does indeed purport to add the PGEU as a party. However, this is not an agreement made directly with employees, and the clause in the proposed Agreement has been objected to by the AWU prior to the Agreement being certified by the Commission.
It is still unclear why, despite the AWU's submissions that PGEU representation has been disputed since February 2024, this did not impede: finalisation of the proposed Agreement with the PGEU listed as a party, the Agreement being provided and explained to employees and voted on and approved by a valid majority, all proposed parties including the AWU signing the Agreement, and the application being made by Council for its certification.
Whatever the reasons, it goes some way to explaining why the PGEU would form a view they were covered by the proposed Agreement as a party bound.
Irrespective, the objection was lodged and the question of whether the Commission could certify the Agreement in the current circumstances has been answered in the negative. It makes little sense that a provision requiring the Commission to be satisfied no relevant employee organisation has been excluded as a party from the proposed Agreement would allow the Commission to pay no regard to other organisations not otherwise relevant – unless their inclusion as a term of the Agreement was by consent.
No determination has been made or could be made in relation to the question of eligibility for the PGEU to enrol as members treatment plant operators. I thank the AWU for their detailed submissions in this regard.
Conclusion
I concur with the AWU that the Commission cannot certify the Agreement as currently proposed due to a dispute regarding eligibility of treatment plant operators to be members of the PGEU and the associated rights of representation.
Under s 193 the Commission must refuse to grant the application if each requirement under sub-div 2 is not satisfied. Section 200 is a requirement under sub-div 2. I find I cannot be satisfied that each relevant employee organisation is a party to the Agreement in circumstances where the PGEU's standing as a relevant employee organisation is in dispute. A dispute about the representation under this Act of the industrial interests of employees by an employee organisation is a demarcation dispute.[16]
[16] IR Act (n 2) sch 5, definition of 'demarcation dispute'.
If the PGEU presses its claim to be included as a party in the proposed Agreement, the matter of eligibility will need to be determined by the Full Bench.[17] The evidentiary burden will rest with the PGEU to demonstrate eligibility. I will seek the President's approval to refer this question to the Full Bench for determination, prior to the substantive matter being remitted back to the Commission.
[17] Ibid s 479.
I order accordingly.
Orders
1. The proposed Rockhampton Regional Council Treatment Plant Operators Certified Agreement 2022 is not currently capable of being certified with the PGEU listed as a party, due to a demarcation dispute existing with the AWU.
2. Pursuant to s 486(1) of the Industrial Relations Act 2016 (Qld), I find that it is appropriate for the demarcation dispute to be referred to the Full Bench for Hearing prior to the substantive matter being remitted back for finalisation.

[2024] QIRC 264

14 November 2024