The Geo Group Australia Pty Ltd v CPSU, the Community and Public Sector Union
[2010] FWA 6775
•31 AUGUST 2010
[2010] FWA 6775 |
|
DECISION |
Fair Work Act 2009
s.604—Appeal of decisions
The GEO Group Australia Pty Ltd
v
CPSU, The Community and Public Sector Union
(C2010/4292)
JUSTICE GIUDICE, PRESIDENT | MELBOURNE, 31 AUGUST 2010 |
[1] This is an application by The GEO Group Australia Pty Ltd (GEO) for a stay of the operation of a decision made by Vice President Watson on 25 June 2010, pending the determination of GEO’s appeal against the decision. 1
[2] In his decision the Vice President gave consent to an application by the CPSU, Community and Public Sector Union (CPSU) to extend its eligibility rule to enable it to enrol, among others, employees engaged to work in any private correctional facility, other than the Junee Correctional Centre. GEO employs correctional officers at a private correctional facility in New South Wales known as Parklea. The effect of the Vice President’s decision is that the CPSU is eligible to enrol correctional officers employed by GEO at Parklea.
[3] The approach to be adopted in relation to applications of this kind involves two questions. The first is whether there is a reasonably arguable case that permission will be granted to appeal and that the appeal will succeed. The second question is whether the balance of convenience favours a stay of operation. Both questions require a positive answer if the application is to succeed.
Arguable case
[4] In its notice of appeal filed on 15 July 2010, GEO advanced 5 grounds of appeal as follows:
“1. Vice President Watson erred by taking into account, or placing excessive weight on, the Applicant's representation of NSW public correctional officers in determining whether employees employed to work in any private correctional facility in NSW conveniently belonged to the Applicant;
2. Vice President Watson erred by failing to take into account, or not placing sufficient weight on, the Liquor, Hospitality and Miscellaneous Union's (LHMU) representation of employees employed to work at private correctional facilities at Junee Correctional Centre and in other Australian states in determining whether such employees conveniently belonged to the Applicant;
3. Vice President Watson erred by deciding that no organisation of employees other than the Applicant would more effectively represent members employed in NSW without adequately considering the nature and quality of the LHMU's representation of employees in the private correctional facilities in NSW and other states;
4. Vice President Watson erred by failing to take into account that the LHMU had made an application to consent to alter its eligibility rules seeking substantially the same alteration sought by the Applicant;
5. Vice President Watson erred by failing to give any, or adequate, reasons for his decision.”
[5] GEO filed an amended notice of appeal on 24 August 2010 and also made application for a stay of the Vice President’s decision. The amended notice of appeal contains the following additional grounds of appeal:
“6. After the Appellant notified of its interest in the application by letter dated 18 December 2009, Vice President Watson erred by failing to give the Appellant a proper opportunity to make submissions and seek leave to intervene in proceedings.
7. After the Appellant's letter dated 18 December 2009, Vice President Watson erred by determining the application without notifying the Appellant to permit it to make submissions and seek leave to intervene in proceedings.”
[6] It is necessary to mention the context in which the Vice President’s decision was made. The CPSU application for consent was made on 18 June 2009. The application was advertised in the Government Gazette on 5 August 2009. Any objection to the application needed to be lodged by 9 September 2009. No objection was filed by that date. On 25 September 2009 the Liquor, Hospitality and Miscellaneous Union (LHMU) filed an objection. The objection was out of time. In due course it was decided by Vice President Watson and confirmed by a Full Bench that there was no power to extend time and the objection was invalid. 2 Thereafter, there being no objections to the application, the Vice President dealt with the application without a hearing and gave his consent in the decision under appeal.
[7] The grounds in the notice of appeal filed on 15 July 2010 primarily relied upon by GEO in the application before me are those numbered 2, 3 and 5. It can be seen that grounds 2 and 3 depend upon the LHMU being able to enrol staff at Parklea. While it is common ground that there is a dispute on that question, beyond indicating that a dispute exists, GEO did not advance any reasons of substance why it is arguable that the LHMU does have such capacity. The part of the LHMU’s eligibility rule relied upon by GEO refers to “security or watching”. Security work normally involves protection of persons or property from potential injury or damage. In context, “watching” probably has a related meaning. No material was advanced or referred to which might support the proposition that those words should be construed to include correctional officers employed at Parklea. It is far from obvious that they do.
[8] Ground 5 alleges a failure to give adequate reasons. When it is appreciated that the Vice President considered the application in the absence of any objection, and in the absence of any submissions from GEO, it is difficult to see how this ground could be sustained. GEO did not seek to put to the Vice President the issues which it now sees as so important.
[9] The additional grounds in the amended notice of appeal, assuming that in due course leave is granted to amend, are based on the allegation that the Vice President was under a duty to afford GEO an opportunity to consider whether it would seek to intervene and make submissions. This duty is said to have arisen from a letter written to the Vice President’s associate by GEO’s solicitors on 18 December 2009. In the letter it was indicated that GEO had a significant interest in the CPSU application and wished to be notified of any further proceedings in the matter and reserved GEO’s right to seek leave to intervene in any further proceedings. No relevant notification was received.
[10] The CPSU raised a number of obstacles confronting GEO in relation to the additional grounds in the amended notice of appeal. I mention two of them. First, at no stage did GEO lodge a notice of objection or seek to intervene in the CPSU application. Secondly, GEO must demonstrate that in the absence of an objection an interested party has a right to be heard on an application for consent of this type. This question involves interpretation of the relevant statutory provisions, including regulations.
[11] On what has been put to me I am unable to conclude that there is a sufficiently arguable case that permission would be granted to appeal and that the appeal would succeed. That is primarily because on the material advanced to this point I am not persuaded that there is a reasonably arguable case that the LHMU is eligible to enrol the employees at Parklea. This is not a concluded view. Further argument and reference to relevant authority may lead me to a different conclusion, one favourable to GEO’s case. But if my provisional view is adopted on the hearing of the appeal, it is difficult to imagine that the CPSU application for consent would not ultimately succeed.
Balance of Convenience
[12] GEO submitted that the balance of convenience favours a stay. It relied upon a number of matters, including the following:
(a) Parklea became a private prison on 31 October 2009, prior to that date it was operated by Corrective Services, New South Wales;
(b) GEO employees 125 permanent employees, 36 trainees and 43 casuals at Parklea;
(c) prior to 30 October 2009 only 5 of the permanent employees were employed by Corrective Services, New South Wales;
(d) there are 54 LHMU members at Parklea;
(e) there is an enterprise agreement applying at Parklea which was signed by the State Secretary of the LHMU who was the only bargaining agent in the negotiations for the agreement;
(f) LHMU and its officials are active in representing the interests of the staff;
(g) the CPSU is competing for membership with the LHMU and has entered the premises at Parklea on around 40 occasions since the Vice President’s decision; and
(h) GEO is apprehensive that the competition for members will cause confusion in the workforce, lead to disregard for the disputes procedure in the enterprise agreement, require duplication of GEO’s resources to deal with two unions, create instability due to recruitment activities and require it to deal with two sets of delegates.
[13] While GEO adduced evidence on the balance of convenience, the evidence of disruption to GEO’s operations was scant. It may be inferred that the large number of site visits by the CPSU has placed some additional demands on GEO management. There was also evidence that the CPSU had sought to raise some matters, although it appears that GEO has not spent a great deal of time dealing with those approaches. There was evidence of the CPSU attempting to recruit members and no doubt competition for members is likely to lead to some disharmony, although how much in the current circumstances it is not possible to predict.
[14] The CPSU submitted that the balance of convenience does not favour a stay. Among other things, it pointed out that if the LHMU does not have eligibility to enrol staff at Parklea a stay of operation would prejudice the CPSU and the employees. Given my provisional view about the LHMU’s eligibility rule, this argument is one of some significance. The CPSU also asked me to take into account the effect of a stay on two other applications before the tribunal. The first application is one made by the LHMU for consent to an amendment to its conditions of eligibility to make specific provision for correctional staff. The second application is for a representation order in relation to staff at Parklea in favour of the LHMU.
[15] There is an additional consideration. In many cases there is much to be said for maintaining the position that existed before the relevant decision was made pending the determination of the appeal. In this case it is not easy to determine the status quo with any precision. While staff at Parklea were eligible to join the CPSU when the prison was operated by Corrective Services, New South Wales, the privatisation has led to a new situation and for the most part a new workforce. While the LHMU has enrolled a significant number of staff, doubts remain about the scope of its eligibility rule.
[16] Because I have decided that there is not a sufficiently arguable case that permission will be granted to appeal and that the appeal will succeed, it is not strictly necessary that I express a view on the balance of convenience. Nevertheless, in case it should become important, I record my view that GEO has not persuaded me that the balance of convenience favours a stay of operation.
Conclusion
[17] For these reasons GEO’s application for a stay of operation of the Vice President’s decision is dismissed.
PRESIDENT
1 [2010] FWA 3492.
2 [2010] FWAFB 3260.
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