The Electrical Trades Union of Employees Queensland

[2016] FWC 8997

[2016] FWC 8997

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
Sch. 1, Cl. 6(2) RO Act - Application for an extension by a TRA

The Electrical Trades Union of Employees Queensland
(D2016/75)

VICE PRESIDENT HATCHER SYDNEY, 19 DECEMBER 2016

Application/Notification for an extension by a transitionally recognised association by The Electrical Trades Union of Employees Queensland

Introduction

[1] On 12 December 2016 the Electrical Trades Union of Employees Queensland (ETUQ), a transitionally recognised association (TRA), lodged an application pursuant to cl.6(2) of Schedule 1 of the Fair Work (Registered Organisations) Act 2009 (RO Act) seeking an extension of its transitional recognition. The application was signed on the ETUQ’s behalf by Peter Simpson, its State Secretary. Clause 6(1)(c)(i) of Schedule 1 of the RO Act provides that the transitional recognition of a TRA will end on the fifth anniversary of the earliest day on which an organisation can make an application in accordance with s.158A(2) of the RO Act unless an extension has been granted by the Commission. Section 158A(2) of the RO Act provides that an application cannot be made under that section before 1 January 2011 or such later day as the Minister declares in writing. On 13 December 2013 the then Minister declared 1 January 2012 as the earliest date under s.158A(2) of the RO Act upon which an application under s.158A(1) of the RO Act may be made (Fair Work (Registered Organisations) Declaration 2010). In the absence of an extension being granted, the transitional recognition of the ETUQ will therefore cease on 1 January 2017.

[2] Clause 6(2) of Schedule 1 of the RO Act read in conjunction with cl.6(1)(c)(ii) provides that the Commission may, on application, grant a TRA an extension of its recognition until 1 January 2018 in prescribed circumstances. Clause 6(1)(c)(ii) provides that the recognition of a TRA will end on the sixth anniversary of the earliest date on which a s.158A(1) application may be made if an extension is granted under clause 6(2). Clause 6(2) provides:

(2)  The FWC may, on application by a transitionally recognised association, grant the association an extension for the purposes of subparagraph (1)(c)(ii) or (1A)(c)(ii) if the FWC is satisfied that the association has made progress towards:

(a) becoming an organisation; or

(b)  rationalising its internal affairs with those of its federal counterpart.

[3] The ETUQ cannot satisfy the first condition in paragraph (a) of cl.6(2) because s.19(5) of the RO Act prohibits the Commission from registering an association registered under a State or Territory industrial law if the association has a federal counterpart. The ETUQ is registered as an organisation of employees under the Industrial Relations Act 1999 (Qld). It also has a federal counterpart. The term “federal counterpart” is defined in s.9A(1) of the RO Act to mean an organisation prescribed to be a federal counterpart of a particular association by the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations). Schedule 1A of the RO Regulations prescribes the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) as the federal counterpart of the ETUQ (see reg. 8A and item 214 of Schedule 1A).

[4] Accordingly the ETUQ’s application may only be granted on the basis that it satisfies the second condition in paragraph (b) of cl.6.2 - that is, it has made progress towards rationalising its internal affairs with those of its federal counterpart, the CEPU.

[5] The ETUQ’s application is accompanied by a statutory declaration made by Mr Simpson on 12 December 2016 which sets out the grounds for the application. It includes the historical and financial arrangements between the ETUQ and the CEPU, as well as an outline of the measures that the ETUQ has implemented towards rationalising its affairs with those of the CEPU. The CEPU is the result of amalgamations which occurred between the Electrical Trades Union of Australia, the Plumbers & Gasfitters Employees Union of Australia and the Communications Workers Union of Australia in 1993-4. The CEPU has maintained three divisions since the amalgamation which correspond to the amalgamating entities. The State branches of the Electrical, Energy and Services Division (Division) have autonomy with respect to matters affecting members of each branch only and matters concerning the participation of the branch in any State industrial conciliation and arbitration system. The Queensland Branch of the Division (Divisional Branch) has historically worked in tandem with the ETUQ. The Divisional Branch and the ETUQ have entered into a Services Agreement under which the Divisional Branch provides services to the ETUQ as required by the ETUQ to discharge its obligations. The ETU and the Divisional Branch each have more than 12,000 financial members.

Evidence

[6] In support of the ETUQ’s application, Mr Simpson made a statutory declaration on 12 December 2016 setting out the steps the ETUQ has taken to rationalise its internal affairs with those of the CEPU. The substance of the declaration may be summarised as follows:

• Administrative: Administratively, members are afforded the same rights and receive the same services regardless of whether they are State system employees or Federal system employees. Over time, the internal administration of the ETUQ and the Divisional Branch has been regularised so that systems are applied appropriately to the requirements of the rules of both organisations. There has been focus on ensuring the Divisional Branch rules and finances were appropriately accommodated by the ETUQ which has allowed the two organisations to operate seamlessly. In particular the rules of the ETUQ ensure that financial members of the Divisional Branch of the CEPU are also members of the ETUQ.



• Joint employment of officials: Under the Service Agreement officials are jointly employed by both the ETUQ and the Divisional Branch with the consent of the respective employees. The intention underpinning this is that the ETUQ will not recover membership fees to which it is entitled from members and the Divisional Branch, which collects fees, will be responsible for the payment of services. There are sophisticated arrangements in place to ensure no employees of both the ETUQ and the CEPU ”double-dip” in relation to employee entitlements. Employees of the ETUQ prior to the commencement of the Service Agreement, other than administrative staff, have been offered and have accepted joint employment with the Divisional Branch. The administrative staff remain employed by the ETUQ. However they perform services as may be required by the Divisional Branch in accordance with the Service Agreement



• Correlating offices: Rules modifications of both the ETUQ rules and the Divisional Branch’s rules has ensured that the structures are the same for both organisations. Elections are held in the Divisional Branch with the results of those elections being applied to the ETUQ by an exemption from holding an election application under s. 580 of the Industrial Relations Act 1999 (Qld). The rules of the ETUQ provide for exemption from elections and set out corresponding offices of the two organisations under rule 71 of the ETUQ rules which. in effect. means that for the two previous elections conducted by the Divisional Branch, the same persons have filled their respective offices in the ETUQ without a separate election being conducted (with the exception of the State Assistant Secretary). The rationale for this is that the operations of the Divisional Branch and the ETUQ are much more effective and efficient as the corresponding offices are comprised of the same persons.

• Streamlined and coherent financial agreements: The Service Agreement provides that the CEPU needs to meet the costs and expenses of the ETUQ and to ensure that the ETUQ is able to perform its obligations to its members. In return, the ETUQ provides the Divisional Branch with the administrative services that it requires to function on a day-to-day basis. The financial reports lodged under the relevant statutory regime accurately reflect this arrangement. It was submitted that, to the best of Mr Simpson’s knowledge, since the ETUQ was given TRA status each enterprise agreement certified in the federal system to which the union has sought to be a party has been in the name of the CEPU and not the ETUQ. Every official of the CEPU that has one of the 23 entry permits under the Fair Work Act 2009 (FW Act) holds their permit in the name of the CEPU not the ETUQ.



• Eligibility: There a small differences in the eligibility rules of the ETUQ with the consequence that there are some members of the ETUQ, employed by federal system employers that remain industrially represented by the ETUQ as a TRA. The Divisional Assistant Secretary and in-house solicitor for the Division has advised that there will be a rule change progressed under s.158A of the RO Act with respect to its eligibility in Queensland and that it is intended for this rule to be certified in 2017. When this rule change takes place, it will entitle the Divisional Branch to represent the industrial interests of the members within the eligibility rule of the ETUQ that are not currently within the eligibility of the CEPU, which will effectively rationalise the coverage of the two organisations.



• Purpose: The purpose of taking these measures has been to rationalise the affairs in relation to reducing the administrative costs to the ETUQ and CEPU members, reduce the replication of services to members, reduce the confusion that arises in relation to the two entities providing similar services to members and enhancing the efficiency and effectiveness of representation of joint members.

Conclusion

[7] I am satisfied, on the basis of the material contained in Mr Simpson’s declaration, that the ETUQ has made progress towards rationalising its internal affairs with those of its federal counterpart, the CEPU. Accordingly, the jurisdictional precondition in cl.6(2)(b) of Schedule 1 of the RO Act is satisfied, and I consider it appropriate to exercise my discretion in favour of granting an extension of the ETUQ’s transitional recognition until 1 January 2018.

[8] I therefore order as follows:

Pursuant to clause 6(2) of Schedule 1 of the Fair Work (Registered Organisations) Act 2009, the transitional recognition of The Electrical Trades Union of Employees Queensland is extended until 1 January 2018.

VICE PRESIDENT

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