TOGETHER QUEENSLAND, INDUSTRIAL UNION OF EMPLOYEES; COMMUNITY AND PUBLIC SECTOR UNION
[2014] FWC 3581
•3 JUNE 2014
[2014] FWC 3581 |
FAIR WORK COMMISSION |
DECISION |
Fair Work (Registered Organisations) Act 2009
s.151(1) RO Act - Membership Agreement with State Registered Union
TOGETHER QUEENSLAND, INDUSTRIAL UNION OF EMPLOYEES; COMMUNITY AND PUBLIC SECTOR UNION
(D2012/201)
DEPUTY PRESIDENT LAWRENCE | SYDNEY, 3 JUNE 2014 |
Membership Agreement with State Registered Union; Together Queensland, Industrial Union of Employees; Community and Public Sector Union.
Introduction
[1] This decision relates to whether the Fair Work Commission (the Commission) should exercise its discretion to terminate an agreement pursuant, to s.151(8) and (9) of the Fair Work (Registered Organisations) Act 2009 (the RO Act), which is made pursuant to s.151(1) of the RO Act.
[2] The disputing parties are Together Queensland Industrial Union of Employees (TQ), an organisation registered pursuant to the Queensland Industrial Relations Act 1999 (QIRA), and the Community and Public Sector Union (CPSU) specifically, the State Public Service Federation Group within that union.
[3] The background to the dispute is quite complicated and will be set out in some detail in this decision. However, in brief, it arises from the break up, in Queensland, of the constituent parts of the two federally registered organisations, the CPSU and the Australian Municipal, Administrative, Clerical and Services Union (ASU). Both unions were created as part of the round of amalgamations that occurred in the early 1990s. However, parts of the parallel state registered unions in Queensland decided to amalgamate with each other pursuant to the QIRA. This has led to considerable disruption and litigation, including this case.
[4] The first step in the litigation was on 4 July 2011. The Secretary of the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees (AMACSU) wrote to the “Registrar” of Fair Work Australia (FWA) advising that from 1 July 2011 the Queensland Public Sector Union of Employees (QPSU) had been deregistered by the Queensland Industrial Relations Commission (QIRC). The letter said the deregistration was a direct result of an amalgamation approved by the QIRC between the QPSU and AMACSU. FWA was renamed the Fair Work Commission (FWC) on January 2013.
[5] The letter went on to advise FWA to amend its organisations’ register to delete references to two agreements made under s.202 of the Industrial Relations Act 1988 (Cth) (IR Act).
[6] The correspondence between FWA and the FWC and the proceedings before Senior Deputy President Acton are dealt with in some detail later in this decision. The file was allocated to me in mid 2013. The hearing which had been scheduled for 18 November 2013 was vacated with the consent of the parties. The matter was set down for hearing on Tuesday, 4 March 2014 before me. I issued new directions for the filing of submissions and other material on 13 November 2013.
[7] In mid February 2014, the parties requested another adjournment. The matter was set down for hearing on 15 April 2014.
[8] The parties relied on the following written submissions filed on:
TQ | - | 24 February 2014 |
CPSU | - | 10 March 2014 |
TQ | - | 31 March 2014 |
CPSU | - | 11 April 2014 (material from the Queensland Industrial Relations Act 1999) |
[9] Additional oral submissions were made by Mr Jim Nolan of Counsel on behalf of TQ and Mr Mark Perica of the CPSU at the hearing on 15 April 2014.
Relevant Legislation prior to the Fair Work (Registered Organisations) Act 2009
[10] Prior to 21 January 1993, s.202 of the IR Act was as follows:
“Section 202 Rules may permit organisation to enter into agreements with State registered unions
202(1) The rules of an organisation of employees may authorise the organisation to enter into agreements, in the prescribed form, with State registered unions to the effect that members of the State registered union concerned who are ineligible State members are eligible to become members of the organisation under the agreement.
202(2) Where, under rules made under subsection (1), an organisation enters into an agreement with a State registered union:
(a) the organisation shall lodge a copy of the agreement in the Industrial Registry;
(b) as soon as possible after a designated Presidential member is satisfied of the matters mentioned in paragraphs (2A)(a) and (b), the Industrial Registrar must enter particulars of the agreement in the register kept under paragraph 63(1)(a); and
(c) the agreement comes into force when the particulars are entered.
202(2A) An agreement entered into by an organisation under its rules made under subsection (1) comes into force only if a designated Presidential Member is satisfied that the agreement:
(a) is not contrary to any objects of this Act; and
(b) is entered into only for the purpose of overcoming any legal difficulty that may arise in connection with the participation or possible participation of ineligible State members in the administration of the organisation or in the conduct of its affairs.
202(3) An organisation is not entitled to represent the industrial interests of persons who are only eligible for membership of the organisation under an agreement entered into under rules made under subsection (1).
202(4) When a person who became a member of an organisation under an agreement entered into under rules made under subsection (1) later becomes eligible for membership of the organisation under its eligibility rules, the organisation is not entitled to represent the industrial interests of the person until a record of the person’s eligibility is entered in the register kept under paragraph 268(1)(a).
202(5) Where an organisation and a State registered union agree, in writing, to terminate an agreement entered into under rules made under subsection (1):
(a) the organisation shall lodge in the Industrial Registry a copy of the agreement to terminate;
(b) the Industrial Registrar shall immediately enter particulars of the termination in the register kept under paragraph 63(1)(a);
(c) the termination of the agreement takes effect when the particulars are entered; and
(d) when the termination of the agreement takes effect, persons who became members of the organisation under the agreement (other than a person whose eligibility for membership of the organisation under its eligibility rules is recorded as mentioned in subsection (4)) cease to be members of the organisation.
202(6) In this section:
‘ineligible State members’, in relation to an organisation, means the members of a State registered union who, under the eligibility rules of the organisation, are not eligible to be members of the organisation;
‘State registered union’, in relation to an organisation, means an industrial union or association registered under a State Act which is composed substantially of persons who, under the eligibility rules of the organisation, are eligible to be members of the organisation;
‘State Act’ means:
(a) the Industrial Arbitration Act, 1940 of New South Wales;
(b) the Industrial Conciliation and Arbitration Act 1961 of Queensland;
(c) the Industrial Relations Act 1979 of Western Australia; or
(d) the Industrial Conciliation and Arbitration Act, 1972 of South Australia.”
[11] From 21 January 1993, s.202 of the IR Act was amended to the following:
“Section 202 Agreement between organisation and state union
202(1) The rules of an organisation of employees may authorise the organisation to enter into agreements in the prescribed form with State unions to the effect that members of the union State union concerned who are ineligible State members are eligible to become members of the organisation under the agreement.
202(2) If, under rules made under subsection (1), an organisation enters into an agreement with a State union, the organisation must lodge a copy of the agreement in the Industrial Registry.
202(3) The agreement does not come into force unless and until the Industrial Registrar enters particulars of the agreement in the register kept under paragraph 63(1)(a).
202(4) The Industrial Registrar must not enter particulars of the agreement in that register unless he or she has been directed by a designated Presidential Member to do so.
202(5) A designated Presidential Member must not give such a direction to the Industrial Registrar unless the Presidential Member is satisfied that the agreement:
(a) is not contrary to:
(i) any object of this Act; or
(ii) any subsisting order made by the Commission relating to the organisation’s eligibility rules; or
(iii) any subsisting agreement or understanding of which the Commission is aware that deals with the organisation’s entitlement to represent under this Act the industrial interests of a particular class or group of employees; and
(b) was entered into only for the purpose of:
(i) overcoming any legal or practical difficulty that might arise in connection with the participation or possible participation of ineligible State members in the administration of the organisation or in the conduct of its affairs; or
(ii) encouraging and facilitating an amalgamation between the organisation and another organisation of employees.
202(6) An organisation is not entitled to represent under this Act the industrial interests of persons who are eligible for membership of the organisation only under an agreement entered into under rules made under subsection (1).
202(7) If a person who became a member of an organisation under an agreement entered into under rules made under subsection (1) later becomes eligible for membership of the organisation under its eligibility rules, the organisation is not entitled to represent the industrial interests of the person until a record of the person’s eligibility is entered in the register kept under paragraph 268(1)(a).
202(8) If it appears to a designated Presidential Member:
(a) on his or her own initiative; or
(b) on application by an interested person;
that an agreement entered into under rules made under subsection (1) may no longer be operating for a purpose mentioned in subparagraph (5)(b)(i) or (ii), the Presidential Member must give to the parties to the agreement an opportunity to make oral or written submissions as to whether the agreement is still operating for such a purpose.
202(9) If, after considering any such submissions and, in the case of an application under paragraph (8)(b), the matters raised by the applicant, the designated Presidential Member is satisfied that the agreement is no longer operating for such a purpose, the Presidential Member may, by writing signed by him or her, terminate the agreement.
202(10) The Industrial Registrar must as soon as practicable:
(a) give notice of the termination to each party to the agreement; and
(b) enter particulars of the termination in the register kept under paragraph 63(1)(a).
202(11) If an organisation and a State union agree, in writing, to terminate an agreement entered into under rules made under subsection (1):
(a) the organisation must lodge in the Industrial Registry a copy of the agreement to terminate; and
(b) the Industrial Registrar must as soon as practicable enter particulars of the termination in the register kept under paragraph 63(1)(a).
202(12) The termination of an agreement takes effect when particulars of the termination are entered in the register as mentioned in paragraph (10)(b) or (11)(b) and, when the termination takes effect, persons who became members of the organisation under the agreement (other than a person whose eligibility for membership of the organisation under its eligibility rules is recorded as mentioned in subsection (7) cease to be members of the organisation).
202(13) In this section:
‘ineligible State members’, in relation to an organisation, means the members of a State union who, under the eligibility rules of the organisation, are not eligible to be members of the organisation;
‘State Act’ means:
(a) the Industrial Relations Act, 1991 of New South Wales;
(b) the Industrial Relations Act 1990 of Queensland;
(c) the Industrial Relations Act (S.A.) 1972 of South Australia; or
‘State union’, in relation to an organisation, means:
(a) an industrial union or association which is registered under a State Act; or
(b) an industrial union or association in Victoria or Tasmania which is neither registered under this Act nor part of an organisation registered under this Act;
and which is composed substantially of persons who, under the eligibility rules of the organisation, are eligible to members of the organisations.”
[12] Section 6 of the Industrial Relations Legislation Amendment Act (No.2) 1992 (Cth) which amended the IR Act to the above, also provided as follows:
“(2) Any rules of an organisation of employees that were made under subsection 202(1) of the … [IR] Act and were in force immediately before the commencement of this section are taken to have been made under subsection 202(1) of the … [IR] Act as amended by this section.
(3) If an agreement was entered into before the commencement of this section by an organisation of employees with a State union under rules referred to in subsection (2), the agreement is taken to have been entered into under those rules as they have effect under that subsection and:
(a) if particulars of the agreement had, before that commencement, been duly entered in the register kept under paragraph 63(1)(a) of the … [IR]
Act, those particulars are taken to have been duly entered in that register under section 202 of the … [IR] Act as amended by this Act; or
(b) if particulars of the agreement had not, before that commencement, been duly entered in that register but a copy of the agreement had been lodged in the Industrial Registry, the copy is taken to have been lodged under subsection 202(2) of the … [IR] Act as amended by this section.”
[13] At both times, paragraph 63(1)(a) of the IR Act was as follows:
“Section 63 Functions of the Industrial Registry
63(1) The functions of the Industrial Registry are:
(a) to keep a register of organisations”.
The SPSF - QPOA/SPSFQ Agreements
[14] The two s.202 agreements referred to by AMACSU in their correspondence of 4 July 2011 were:
(i) a 1992 agreement between The State Public Services Federation (SPSF) and the Queensland Professional Officers Association Union of Employees (QPOA) (the 1992 Agreement); and
(ii) a 1994 agreement between the SPSF and the State Public Service Federation Queensland Union of Employees (SPSFQ) (the 1994 Agreement).
[15] On 22 December 1992, Deputy President Acton (as she was then), a designated Presidential member of the Australian Industrial Relations Commission (AIRC), issued a decision (The State Public Service Federation v Queensland Professional Officers Association Union of Employees, Print [K6032]) (SPSF v QPOA decision) in respect of the 1992 Agreement, the effect of which was to direct the Industrial Registrar to enter particulars of the 1992 Agreement in the organisations’ register.
[16] In the decision, it was pointed out that at a hearing of the matter the SPSF and QPOA had tendered a statement which, in summary, pointed out:
“• The SPSF is an organisation of employees registered under the Act. Rule 5A of its rules authorises it to enter into agreements of the type described in s.202 of the Act.
• The QPOA is a union registered under the Industrial Relations Act 1990 (Queensland). (The Industrial Relations Act 1990 (Queensland) repealed the Industrial Conciliation and Arbitration Act 1961 of Queensland. However, by virtue of the Acts Interpretation Act 1901, I consider the reference in s.202(6) of the Act to the 1961 Act is to be construed as including a reference to the 1990 Act.)
• The SPSF has eligibility to enrol persons employed in the State of Queensland by virtue of Rule 3, Section II, of its rules, subject to certain exclusions.
• The QPOA has eligibility to enrol persons employed in the State of Queensland by virtue of Rule 5 - Membership, of its rules and the List of Callings comprising the membership of the QPOA certified by the Industrial Registrar of the Queensland Industrial Relations Commission.
• The QPOA is comprised substantially of persons, who under the eligibility rules of the SPSF, are eligible to be members of the SPSF.
• The members of the QPOA not eligible to be members of the SPSF are employees engaged in professional or technical activities as Cadets, Assistants, Drafting Officers, Dieticians/Nutritionists, Laboratory Technicians, Occupational Therapists, Physiotherapists, Podiatrists, Psychologists, Recreation Officers, Scientists or Speech Therapists, who are employed by employers other than:
(a) the Crown in the right of the State of Queensland; or
(b) any Statutory Corporation, Instrumentality, Authority, or other similar statutory body, whether corporate or unincorporate, established by the Crown in the right of the State of Queensland; or
(c) any educational institution in the State of Queensland designated as a University or College of Advanced Education.
• As at 14 December 1992, the QPOA had some 12646 members, excluding retired members, of whom some 8683 or 68.7% were members of the SPSF. (The remaining members of the QPOA, less approximately 200 members, are eligible for membership of the SPSF but have not as yet become members of the organisation. By virtue of the agreement coming into force, approximately another 200 members of the QPOA will be eligible for membership of the SPSF.)
• A meeting of the Federal Executive of the SPSF held on 13 October 1992 and the Executive of the QPOA held on 20 October 1992 authorised the Federal Secretary of the SPSF and the General Secretary of QPOA respectively, to sign the agreement.
• The agreement is not contrary to any objects of the Industrial Relations Act.
• The agreement is entered into only for the purpose of overcoming any legal difficulty that may arise in connection with the participation or possible participation of ineligible QPOA members in the administration of SPSF or the conduct of its affairs.” (SPSF v QPOA decision)
[17] On 16 March 1994, Deputy President Acton, again as a member of the AIRC, issued a decision (The State Public Service Federation v State Public Services Federation Queensland Union of Employees, Print [L2339]) in respect of the 1994 Agreement directing the Industrial Registrar to enter particulars of the 1994 Agreement in the organisations’ register.
[18] In that decision, it was pointed out that at a hearing of the matter the SPSF and SPSQ tendered a statement which pointed out, amongst other things, that:
- Rule 12 gives the Council of the SPSFQ the power to enter into such an agreement.
“• The SPSF is an organisation of employees registered under the Act.
• The SPSFQ is an organisation of employees registered under the Industrial Relations Act 1990 of Queensland.
• Rule 5A of the rules of the SPSF gives explicit authority for the SPSF to enter into s.202 agreements as follows:
‘5A - AGREEMENTS
Notwithstanding any other provision in these Rules, the Federation may, by resolution of the Federal Council or the Federal Executive, enter into any agreement with any registered or unregistered trade union, industrial organisation, peak council, employer body or like organisation that is not contrary to law, and without limiting the generality of the foregoing, may enter into agreements in terms of s.202 of the Industrial Relations Act 1988 or any statutory provision amending replacing or supplementing that provision.’
• The rules of the SPSFQ give explicit authority for the SPSFQ to enter into a s.202 agreement with the SPSF pursuant to object (j) of rule 4:
‘(j) To enter into an agreement with the Federal Organisation pursuant to Section 202 of the Industrial Relations Act 1988 or any statutory provision amending, replacing or supplementing that provision.’
• A meeting of the Federal Executive of the SPSF held on 22 April 1993 authorised the Federal Secretary to sign the revised s.202 agreement.
• A meeting of the Council of the SPSFQ held on 7 September 1993 authorised the signing of the revised s.202 agreement.
• The SPSFQ is composed substantially of persons who, under the eligibility rules of the SPSF, are eligible to be members of the SPSF.
• The eligibility of the SPSFQ extends beyond that of the SPSF with respect to:
(a) Employees engaged in professional or technical activities as Cadets, Assistants, Drafting Officers, Dieticians/ Nutritionists, Laboratory Technicians, Occupational Therapists, Physiotherapists, Podiatrists, Psychologists, Recreation Officers, Scientists or Speech Therapists, who are employed by employers other than:
(a) The Crown in the right of the State of Queensland; or
(b) Any Statutory Corporation, Instrumentality, Authority, or other similar statutory body, whether corporate or unincorporated, established by the Crown in the right of the State of Queensland; or
(c) Any educational institution in the State of Queensland designated as a University or College of Advanced Education.
(b) Persons employed in the Queensland public sector in the callings of:
Lecturers - Colleges of Advanced Education Master of State Vessels
Mates of State Vessels
Recreation Officers
(c) Persons employed in Regional Health Authorities in the categories of Finance Officers, Librarians and their Assistants, Management Services Officers, Medical Records Administrators (other than persons employed pursuant to the Professional and Technical Employees' Award - Public Hospitals Queensland and the Queensland Radium Institute), Personnel Officers, Programme Officers and Services Officers.
(d) Persons granted life membership under Rule 48 of the SPSFQ.
• The membership of the SPSFQ as at 2 March 1994 was:
Number of SPSFQ Members 29621 / Number of SPSFQ Members who are also SPSF Members 24406 / Number of SPSFQ Members not in SPSF 5215
Of the 5215 SPSFQ members not in the SPSF, many are currently ineligible under the SPSF rules.
• The SPSFQ is an Associated Body of the SPSF.
• The Queensland Branch of the SPSF and the SPSFQ has determined to unify their Council electorates and electoral system. The SPSFQ has determined to integrate its operations so far as is possible with the SPSF.
• The revised agreement is not contrary to any objects of the Industrial Relations Act 1988.
• The revised agreement is entered into only for the purpose of overcoming any legal difficulty that may arise in connection with the participation or possible participation of ineligible SPSFQ members in the administration of the SPSF or the conduct of its affairs.”
Amalgamations
[19] On 1 January 1993 the QPOA amalgamated with the Queensland State Service Union (QSSU), resulting in the SPSFQ and the deregistration of the QPOA.
[20] In 1999 the SPSFQ changed its name to the Queensland Public Sector Union of Employees (QPSU).
[21] As has been indicated, on 1 July 2011 the QPSU amalgamated with AMACSU. The amalgamation resulted in Unite Queensland, Industrial Union of Employees (UQ) and the deregistration of the QPSU.
[22] On 9 August 2011, UQ changed its name to Together Queensland, Industrial Union of Employees (TQ).
[23] The AMACSU correspondence of 4 July 2011 maintained that having regard to the 1993 QPOA and QSSU amalgamation which resulted in the SPSFQ, the 1992 Agreement was superseded by the 1994 Agreement. The correspondence also suggested the 1994 Agreement ceased to exist following the amalgamation of QPSU (formerly the SPSFQ) and AMACSU and the subsequent deregistration of the QPSU.
[24] TQ also wrote to the “Registrar” of FWA on 30 January 2012 requesting that both the 1992 Agreement and the 1994 Agreement be deleted from the organisations’ register.
[25] I note that on 1 July 1994, the SPSF amalgamated with the Community and Public Sector Union (CPSU), resulting in the deregistration of the SPSF. There continued to be an SPSF Group within the CPSU.
[26] In summary, whilst the 1992 Agreement was between the SPSF and the QPOA and the 1994 Agreement between the SPSF and the SPSFQ, the question to be considered by the time of the 2013/2014 Commission proceedings was whether the Agreements still stood between the CPSU and TQ and if so, whether they should be set aside.
FWA correspondence with parties
[27] On 10 February 2012, staff of FWA wrote to TQ in regard to the correspondence from the AMACSU of 4 July 2011 and the correspondence of TQ of 30 January 2012. Refer to [4] and [5] above. The correspondence from the staff of FWA stated:
“The correspondence seeks, among other things, that two ‘State agreements’ made in 1992 and 1994 by antecedent organisations to Together Queensland, Industrial Union of Employees with the Federal ‘State Public Services Federation’ (SPSF) and approved by the Australian Industrial Relations Commission under s.202 of the Industrial Relations Act 1988 (IR Act) be deleted from the Federal Register.
Accordingly the correspondence constitutes an application to terminate both State agreements under ss.150 and 151 of the Fair Work (Registered Organisations) Act 2009 (which are the successor provisions to s.202 of the IR Act). The grounds of the application appears to be that the original State unions that made the agreements have now been deregistered under Queensland industrial law.
We note that the Federal SPSF was amalgamated with (what is now) the ‘CPSU, the Community and Public Sector Union’ (CPSU) on 1 July 1994 and then deregistered. It appears that after the amalgamation that both State agreements may have been, in effect, transferred to the amalgamated CPSU under s.253TA of the IR Act 1988. A similar provision to s.253TA is now set out in s.77 of the RO Act.
Section 151 empowers FWA to terminate a State agreement if it is satisfied that it is no longer operating for a purpose under s.151(5). Prior to any such termination FWA is required to give to the ‘parties to the agreement’ an ‘opportunity to make oral or written submissions’ as to whether the agreement is still operating for a prescribed purpose under s.151.
Accordingly a copy of the correspondence (together with related materials) has been forwarded to the CPSU seeking a response by Friday 24 February 2012 as to whether it intends to lodge written submissions... Once the CPSU has provided its response (and any written submissions) the matter will be forwarded immediately to the FWA Tribunal for consideration under s.151 of the RO Act.”
[28] Staff of FWA also wrote to the CPSU on 10 February 2012 advising them of the correspondence from AMACSU of 4 July 2011 and TQ of 30 January 2012. That correspondence from the staff of FWA went on to state:
“The correspondence presents as an application to terminate both State agreements under ss.150 and 151 of the Fair Work (Registered Organisations) Act 2009 (RO Act) which are the successor provisions to s.202 of the IR Act. It appears that the grounds for the application to terminate the agreements is that the original State unions that made the agreements have now been deregistered under Queensland industrial law. Copies of relevant decisions and notices of the Queensland Industrial Relations Court and Commission dating back to 1992 are provided...
Both agreements were made with the former federally registered ‘State Public Services Federation’ (SPSF). The SPSF was amalgamated with (what is now) the ‘CPSU, the Community and Public Sector Union’ (CPSU) on 1 July 1994 and then deregistered. It appears that after the amalgamation that both State agreements may have been, in effect, transferred to the amalgamated CPSU under s.253TA of the IR Act 1988. A similar provision to s.253TA is now set out in s.77 of the RO Act.
We note that s.151 empowers FWA to terminate a State agreement if it is satisfied that it is no longer operating for a purpose under s.151(5) of the RO Act. We also note that prior to any such termination that FWA is required to give to the ‘parties to the agreement’ an ‘opportunity to make oral or written submissions’ as to whether the agreement is still operating for a prescribed purpose under s.151.
Accordingly we have provided the attached correspondence to enable the CPSU to make submissions, should it wish to do so, which can be forwarded with the applications to the FWA Tribunal for consideration.”
[29] Section 253TA of the IR Act was as follows:
“Section 253TA Effect of amalgamation on agreement under section 202
253TA(1) Unless the scheme of a proposed amalgamation otherwise provides, an agreement in force under section 202 to which a de-registered organisation was a party continues in force on and from the amalgamation day as if references in the agreement to the de-registered organisation were references to the amalgamated organisation.
253TA(2) The Industrial Registrar must enter in the register kept under paragraph 63(1)(a) particulars of the effect of the amalgamation on the agreement.”
[30] Section 77 of the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act) provides that:
“77 Effect of amalgamation on agreement under section 151
(1) Unless the scheme of a proposed amalgamation otherwise provides, an agreement in force under section 151 to which a de-registered organisation was a party continues in force on and from the amalgamation day as if references in the agreement to the de-registered organisation were references to the amalgamated organisation.
(2) The General Manager must enter in the register kept under paragraph 13(1)(a) particulars of the effect of the amalgamation on the agreement.”
[31] On 5 April 2012, the CPSU wrote to the staff of FWA in response to the correspondence from the staff of 10 February 2012. The CPSU correspondence of 5 April 2012 states the following:
“Ground for the application
TG identifies a single ground for the application - the QPSU has been deregistered. It does not allege that the original purpose for which the 1992 and 1994 Agreements were made no longer exists.
CPSU standing to make submissions
On 1 July 1994 the SPSF was deregistered following an amalgamation. The amalgamated organization, the CPSU, became a party to both the 1992 and 1994 Agreements by operation of section 253TA of the IR Act. The CPSU is to be given the opportunity to make written or oral submissions in relation to the application for termination.
Relevance of the deregistration of the QPSU
The deregistration of the QPSU arose out of the amalgamation of the QPSU with the Australian Municipal, Administrative, Clerical and Service Union, Central and Southern Queensland Clerical and Administrative Branch, Union of Employees (AMACSU). TQ has become a party to the 1992 and 1994 Agreements by operation of the Industrial Relations Regulation 2000. (See regulation 143)
The only relevance of the deregistration of the QPSU is that TQ is now the State union party to the 1992 and 1994 Agreements.
TQ's application should be dismissed.”
[32] On 1 July 2012, TQ wrote to the staff of FWA as follows:
“We refer to your correspondence in relation to the consequences of the formation of Together Queensland, Industrial Union of Employees. I refer, in particular, to the outstanding issue of the section 202 Agreements.
In your letter of 10 February 2012, you refer to section 151(9) of the Fair Work (Registered Organisations) Act 2009 (FW(RO)) Act and express your view that this section provides a mechanism by which the FWA can terminate the section 202 Agreements. This assumes, of course, that the 2 Agreements remain in force. Our primary position is that neither Agreement remains in force, hence, there is no necessity for the FWA to exercise its powers under section 151(9). In support of this position, we note the following:
1. The first section 202 Agreement is an Agreement dated 2 November 1992 between the State Public Services Federation (SPSF) and the Queensland Professional Officers Association Union of Employees (QPOA) - this Agreement was entered on the Register on 23 December 1992.
2. The second section 202 Agreement is an Agreement between the State Public Services Federation and the State Public Services Federation Queensland Union of Employees (SPSFQ) dated 28 February 1994 and entered on the Register on or about 16 March 1994.
3. Between the date when the first section 202 Agreement was entered on the Register and the making of the second section 202 Agreement, the QPOA and the Queensland State Services Union of Employees (QSSU) amalgamated to form the SPSF Queensland which became the Queensland Public Sector Union of Employees (QPSU).
4. The second Agreement applies to the same class of members as the first and adds additional classes of members who became members as a result of the merger with the QSSU.
It is reasonable to assume that, once the second section 202 Agreement was made, the first section 202 Agreement became redundant and was impliedly revoked by the making of the second section 202 Agreement. On this basis, we say this agreement has had no force since 16 March 1994.
You point out in your letter that, when the Federal SPSF amalgamated with the Community and Public Sector Union (CPSU), section 253TA of the Industrial Relations Act 1988 preserved the operation of the section 202 Agreements. While we agree that this is the case in relation to the second section 202 Agreement, for the reasons set out above, we do not agree that this occurred with the first section 202 Agreement.
In the present situation, the issue is the amalgamation of two State registered unions and whether there is anything in the Industrial Relations Act 1999 (Queensland) and the Industrial Relations Regulations 2000 which could preserve the second section 202 Agreement. The relevant sections of the Act, and our comments on them, are as follows:
Section 620(5) which is in the following terms:
‘If there is a proposed deregistering of an organisation before the amalgamation-
(a) Sections 648 to 650 and 653 apply to the organisation as if a deregistration order had been made for it; and
(b) its property and liabilities vest in the amalgamated organisation; and
(c) its members become members of the amalgamated organisation, without requirement to pay an entrance fee.’
In our view, section 620 sets out exhaustively the ‘things’ which previously attached to the QPSU which would translate to Together. In particular, we do not regard a section 202 Agreement as being either ‘property’ or a ‘liability’.
Of the sections referred to in section 620(5)(a), sections 650 and 653 are relevant. The relevant parts of section 650 are as follows:
‘(1) ...
(2) If the deregistered organisation was incorporated only because of its registration -
(a) it ceases to be incorporated and becomes an association;
and
(b) ...
(c) its rules continue in force to the extent they can still be carried out or complied with.’
In our view, while the QPSU may continue as an association in a technical sense, in a practical sense, it will have no members and no assets, hence, the rules will be incapable of being carried out.
Section 653 is in the following terms:
‘If an award, EFA, commission order, certified agreement or industrial agreement (the instrument) bound the deregistered organisation and its members before the deregistration -
(a) from the deregistration, the deregistered organisation and its members do not have the right to a benefit under the instrument; and
(b) the instrument ceases to have any effect for the deregistered organisation 21 days after the deregistration.’
This section must be seen in the context of regulation 143 which operates to ensure that the benefit of instruments applicable to the deregistering organisation apply to the amalgamated organisation. Regulation 143 is in the following terms:
‘(1) From the amalgamation day, the following instruments continue to have effect -
(a) an instrument that -
(i) a deregistered organisation is a party to; or
(ii) was given to, by, or in favour of a deregistered organisation; or
(iii) refers to a deregistered organisation;
(b) an instrument under which -
(i) money is, or may become, payable to, or by, a deregistered organisation; or
(ii) property may be disposed of to, or by, a deregistered organisation.
(2) For acts, omissions, transactions and matters done or after that day, the instrument applies as if a reference in the instrument to a deregistered organisation were a reference to the amalgamated organisation.’
The term ‘instrument’ is not defined either in the Industrial Relations Regulation dictionary or in the Industrial Relations Act dictionary nor is it used in the context it is used in section 653 which is set out above. Accordingly, we consider that the term is intended to apply to instruments which are not derived from processes contained within the Industrial Relations Act. This is made clear by sub-regulation (2) which applies to instruments relating to entitlements to or liabilities to pay money and instruments relating to the acquisition or disposal of property.
The question then arises as to whether regulation 143 operates to give continuing effect to the second section 202 Agreement. There are 2 components to the section 202 Agreement process namely:
- First the making of an Agreement between a Federally registered union and a state registered union; and
- Secondly, a finding by the then Industrial Relations Commission that the requirements of the then Industrial Relations Act 1988 were met and the subsequent notation on the register of the federally registered union.
In our view, regulation 143 could potentially continue the operation of the second 202 Agreement substituting Together for the QPSU. However, the Commission’s decision to endorse the Agreement and put the notation on the register was made in respect of a specific State registered union which, for practical purposes, ceased to exist after the creation of Together. Accordingly, the Industrial Relations Commission’s endorsement of the section 202 Agreement has ceased to have effect. Alternatively, to the extent that the Commission’s decision to endorse the Agreement and the notation on the Register are ‘instruments’, they are instruments made under a Federal law which cannot be given wider application by a State regulation.
The CPSU position
While we do not agree with the position put on behalf of the CPSU by its solicitors… it is common ground between Together and the CPSU that some Together members may continue to be members of the CPSU. It is not, however, the intention of Together that the CPSU would have right to have as members people covered by Together’s eligibility rule but not covered by the CPSU eligibility rules. For this reason, even if the second section 202 Agreement was still in force, which we believe it is not, Together would resile from that Agreement. Together has no capacity within its registered state rules to making a new Agreement under section 151 of the FW(RO) Act with the CPSU.”
[33] The file in this matter was referred to a member of FWA on 21 June 2012 and subsequently to Senior Deputy President Acton.
[34] The matter was listed for Mention before Senior Deputy President Acton on 14 August 2012. Following that Mention, Directions were issued for TQ and the CPSU to file in FWA and serve on the other party written submissions in respect of TQ’s application under s.151(8) of the RO Act. It was envisaged that the matter could be determined on the basis of written submissions.
[35] Submissions were lodged, but in December 2012 the CPSU requested that the decision of the Commission be put on hold pending the finalisation of an inquiry by the General Manager of FWA under s.330 of the RO Act into the events surrounding the creation of TQ. TQ did not consent to this request and the matter was set down for hearing on 4 March 2013. Ultimately the hearing was adjourned, with the consent of the parties, and listed for report on 18 November 2013.
[36] As I have already mentioned, the file was allocated to me in mid 2013. At the request of the parties the 18 November 2013 hearing did not go ahead.
Relevant Provisions of the RO Act
[37] Section 151 of the RO Act is the successor provision of the RO Act that governs the operation of the 1992 and 1994 Agreements. It provides as follows:
“151 Membership agreements
(1) The rules of an organisation of employees may authorise the organisation to enter into agreements in the prescribed form with State unions to the effect that members of the State union concerned who are ineligible State members are eligible to become members of the organisation under the agreement.
(2) If, under rules made under subsection (1), an organisation enters into an agreement with a State union, the organisation must lodge a copy of the agreement with FWC.
Note: This subsection is a civil penalty provision (see section 305).
(3) The agreement does not come into force unless and until the General Manager enters particulars of the agreement in the register kept under paragraph 13(1)(a).
(4) The General Manager must not enter particulars of the agreement in that register unless he or she has been directed by FWC to do so.
(5) FWC must not give such a direction to the General Manager unless FWC is satisfied that the agreement:
(a) is not contrary to:
(i) Parliament’s intention in enacting this Act (see section 5); or
(i) any object of this Act or the Fair Work Act; or
(ii) any subsisting order made by FWC relating to the organisation’s eligibility rules; or
(iii) any subsisting agreement or understanding of which FWC is aware that deals with the organisation’s entitlement to represent under this Act, or the Fair Work Act, the industrial interests of a particular class or group of employees; and
(b) was entered into only for the purpose of:
(i) overcoming any legal or practical difficulty that might arise in connection with the participation, or possible participation, of ineligible State members in the administration of the organisation or in the conduct of its affairs; or
(ii) encouraging and facilitating an amalgamation between the organisation and another organisation of employees.
(6) An organisation is not entitled to represent under this Act, or the Fair Work Act, the industrial interests of persons who are eligible for membership of the organisation only under an agreement entered into under rules made under subsection (1).
(7) If a person who became a member of an organisation under an agreement entered into under rules made under subsection (1) later becomes eligible for membership of the organisation under its eligibility rules, the organisation is not entitled to represent the industrial interests of the person until a record of the person’s eligibility is entered in the register kept under paragraph 230(1)(a).
(8) If it appears to FWC:
(a) of its own motion; or
(b) on application by an interested person;
that an agreement entered into under rules made under subsection (1) may no longer be operating for a purpose mentioned in subparagraph (5)(b)(i) or (ii), FWC must give to the parties to the agreement an opportunity to make oral or written submissions as to whether the agreement is still operating for such a purpose.
(9) If, after considering any such submissions and, in the case of an application under paragraph (8)(b), the matters raised by the applicant, FWC is satisfied that the agreement is no longer operating for such a purpose, FWC may, by order, terminate the agreement.
(10) The General Manager must as soon as practicable:
(a) give notice of the termination to each party to the agreement; and
(b) enter particulars of the termination in the register kept under paragraph 13(1)(a).
(11) If an organisation and a State union agree, in writing, to terminate an agreement entered into under rules made under subsection (1):
(a) the organisation must lodge with FWC a copy of the agreement to terminate; and
(b) the General Manager must as soon as practicable enter particulars of the termination in the register kept under paragraph 13(1)(a).
Note: Paragraph (a) is a civil penalty provision (see section 305).
(12) The termination of an agreement takes effect when particulars of the termination are entered in the register as mentioned in paragraph (10)(b) or (11)(b) and, when the termination takes effect, persons who became members of the organisation under the agreement (other than a person whose eligibility for membership of the organisation under its eligibility rules is recorded as mentioned in subsection (7)) cease to be members of the organisation.”
[38] The question for the Commission is whether it should, having considered the submission of the parties to the Agreements which have been lodged pursuant to s.151(8), terminate the Agreements pursuant to s.151(9).
Submissions of the Parties
[39] The formal written and oral submissions made by the CPSU and TQ built on the points made in the correspondence with the Commission staff which have already been set out in some detail. I will now summarise the main submissions made by each.
Together Queensland
[40] TQ’s primary position is neither of the Agreements remain in force and, hence, there is no necessity for FWC to exercise its powers under s.151(9) of the RO Act. However, as the Agreements have been effectively revoked it is procedurally and administratively appropriate for the organisations’ register to be amended to delete any reference to the Agreements. To avoid any doubt or confusion, TQ seeks that the Commission act to have its register reflect what has already occurred.
[41] In the alternative, TQ seeks that the Agreements be terminated by the Commission, as s.151(b)(i) and (ii) have been overtaken by the amalgamation of the QPSU and AMACSU.
[42] More specifically, it is submitted:
- The 1992 Agreement became redundant and was impliedly revoked and of no force once the 1994 Agreement was made.
- This is because the 1994 Agreement applies to the same class of members as the 1992 Agreement, with the addition of classes of members who become members as a result of QPOA’s amalgamation with QSSU.
- The AIRC’s decision effectively directing the Industrial Registrar to enter particulars of the 1994 Agreement in the organisations’ register has ceased to have effect. This is because the 1994 Agreement was made with SPSFQ which subsequently changed its name to QPSU and which for all practical purposes has ceased to exist.
- QPSU amalgamated with AMACSU, resulting in UQ, now TQ, and the deregistration of the QPSU. Pursuant to s.620(5) of the Industrial Relations Act 1999 (Qld) (IRQ Act), on its deregistration QPSU property and liabilities vested in UQ and QPSU members became members of UQ, (now TQ).
● There is nothing in the Queensland legislation which would .preserve the 1994 agreement. The relevant sections of the QIRA and Regulation 143 are set out in full in [32] above. TQ submits that the agreements are not “instruments” which are preserved under the QIRA.
- The 1992 Agreement and the 1994 Agreement are no longer operating for a purpose mentioned in ss.151(5)(b)(i) or (ii) of the RO Act, as those sections have been overtaken by the amalgamation of the QPSU with AMACSU and subsequent deregistration of the QPSU on and from 1 July 2011.
- UQ changed its name to TQ and the TQ rules provide for TQ to enter into membership agreements, including agreements under s.151 of the RO Act, with the Australian Municipal, Administrative, Clerical and Services Union (ASU). TQ has no capacity under its rules to make a new membership agreement under s.151 of the RO Act with the CPSU, the organisation with whom the SPSF amalgamated in 1994.
- On 9 August 2012, the Executive of TQ passed the following motion:
“Together Queensland, Industrial Union of Employees, a state registered union within the Queensland industrial relations system and a transitionally registered association within the Federal jurisdiction resolves, in relation to any and all matters that may be subject to s.151 of the Fair Work (Registered Organisations) Act 2009 (ROA) and any predecessor provisions as so captured in earlier legislation including s.202 of the Industrial Relations Act 1988 as far as they related to arrangements that may have existed with the currently named Community and Public Sector Union, as follows:
(1) That as a result of the amalgamation between the Australian Municipal, Administrative, Clerical and Services Union, Central and Southern Queensland, Clerical and Administrative Branch, Union of Employees (AMACSU) and the Queensland Public Sector Union of Employees (QPSU) no capacity exits within the registered state Rules of Together Queensland, Industrial Union of Employees for any arrangement in accordance with s.151 the ROA to be entered into between ... [TQ] and the CPSU;
(2) To the extent that any agreement existed prior to the amalgamation of the QPSU and AMACSU under the ROA or its predecessor Acts between the then QPSU and the CPSU, ... [TQ] now repudiates those agreements.”
[43] If the Commission decides that either or both of the Agreements continue to apply, the Commission can act under s.151(8)(b) on the basis of TQ’s application, and decide that the Agreements are no longer operating for the purpose, as provided for in s.151(5)(b)(i).
[44] In its submission in reply, lodged on 31 March 2014, TQ modified its analysis of the Queensland legislation somewhat. However, TQ submits that s.653 of the QIRA only preserves “certain instruments”. These do not include s.151 Agreements. The scheme of the QIRA does not provide for a s.151 Agreement that was applicable to the deregistering entity to apply to the host, unlike the Federal legislation.
[45] On 23 April 2014, TQ advised the Commission that, as at 30 June 2011, there were some 130 members identified as being QPSU members who were entitled to be CPSU members as a result of the s.151 Agreement. They were mainly in various aspects of the private health and aged care industries.
CPSU
[46] The CPSU submits that the TQ application should be dismissed because the two agreements are still on foot and the Commission should not exercise its power pursuant to s.151(8).
[47] Both agreements were preserved by:
● Section 253TA of the Industrial Relations Act 1988
● Schedule 1, clause 77 of the Workplace Relations Act 1996
● Section 77 of the Fair Work (Registered Organisations) Act 2009
[48] By operation of regulation 134 of the IRQ Regulation (now regulation 141 of the Industrial Relations Regulation 2011 (Qld)), s.36 of the Acts Interpretation Act 1954 (Qld) (AIQ Act) which provides that “In an Act – … instrument means any document” and various amalgamations, deregistrations and name changes, the 1992 Agreement and the 1994 Agreement now apply to TQ.
[49] The agreements confer membership and election rights to TQ members to be members of CPSU and this should continue.
[50] TQ should honour its existing agreement with the CPSU especially as some TQ members remain CPSU members.
[51] The CPSU set out in some detail the events which have led to an investigation by the Regulatory Compliance Branch of the Commission. They submit that the Commission should not deal with this matter until that inquiry is complete.
Conclusion
[52] It can be seen that much of the argument before the Commission, especially in the written submissions, concerned the question of whether the agreements were still operative. Given that this question ultimately turns on an analysis of the Queensland legislation and regulations, the answer, in my view, is not without doubt.
[53] TQ submits that the 1992 agreement became redundant and was revoked by the 1994 agreement. This position was not put at the time and the 1992 agreement remains on the Commission’s register. I am not convinced that the making of the 1994 agreement of itself, is sufficient to revoke the 1992 agreement. In any event, there is sufficient uncertainty that the public interest requires the matter to be clarified.
[54] It is agreed by the parties that when the SPSF amalgamated with the CPSU the 1994 agreement (and the 1992 agreement, if TQ is wrong) was preserved by s.253TA of the Industrial Relations Act 1988 (see [29] above). This is continued by s.77 of the RO Act (see [30] above).
[55] However, TQ submits that the 1994 agreement no longer exists because the QPSU was deregistered upon amalgamation with AMACSU to create the state registered union which is now TQ.
[56] Sections 620, 650 and 653 of the QIRA provide for a scheme which transfers property and liabilities of the deregistered organisation upon amalgamation to the host. It provides for continuity of membership. It provides for the transferring of certain “instruments” to the host union. It does not contain a provision like s.77 of the RO Act which continues agreements made pursuant to s.202 of the IR Act / s.151 of the RO Act.
[57] On balance, I prefer the submission of TQ on this point. It seems somewhat strange that the legislative scheme in Queensland would not carry over all of the arrangements of the deregistered union. On the other hand, given the nature of s.151 agreements it is perhaps not surprising that they would not automatically continue. They provide a mechanism for members of the state union to become members of a Federal union for which they would not otherwise be eligible. In this case, the state union, the QPSU, has been deregistered and the amalgamated state union, TQ, has decided to end the relationship with the Federal union, the CPSU, and enter into another with the ASU. The continuation of the agreements would cause obvious practical difficulties.
[58] In any event, I accept the TQ submission that s.653 of the QIRA only preserves “certain instruments” and that does not include these agreements. Consequently they ceased to exist on the deregistration of the QPSU and the creation of TQ.
[59] Even if there is some room for technical debate about the Queensland legislative provisions, the overriding task for me is whether I exercise the discretion in s.151(9) of the RO Act. The full section is set out in [37] above.
[60] There was no dispute that an application has been made under s.151(8) of the RO Act by an “interested person”, being TQ and its predecessors. The application was made by the 4 July 2011 letter to FWA referred to in [4]. This was taken up by TQ and then was the subject of extensive oral and written submission as required by s.151(8).
[61] The sole question to be determined is whether these agreements are “no longer operating for such a purpose”. The “purpose” is contained in subsection 5(b) and relevantly in this case:
“151 Membership agreements
(5) The FWC must not give such a direction to the General Manager unless the FWC is satisfied that the agreement:
(b) was entered into only for the purpose of:
(i) overcoming any legal or practical difficulty that might arise in connection with the participation, or possible participation, of ineligible State members in the administration of the organisation or in the conduct of its affairs; or . . . ”
[62] These agreements cannot any longer play the role required by the subsection because the previous Federal union/state union relationship that caused them to be entered into has ended. TQ has established a new relationship with the ASU. The TQ rules provide for more formal agreements on such matters with the ASU only.
[63] Whether there have been breaches of the CPSU rules by the current or former officers of TQ is a matter which may be the subject of other litigation. That is no reason for the agreements to remain on the Commission’s register.
[64] Similarly, the fact that the Regulatory Compliance Branch of the Commission is carrying out an inquiry into alleged breaches of the RO Act and the CPSU rules is no reason not to exercise the discretion provided for in s.151(9).
[65] These agreements cannot have the effect provided for in s.151(5) because the CPSU is not the counterpart Federal body of TQ. They have been supplanted by the ASU. TQ, under its rules, cannot have a relationship with a Federal organisation, other than the ASU. The agreements can have no practical application and cannot assist in overcoming any legal or practical difficulty in connection with participation of ineligible members in the administration or conduct of the affairs of the CPSU as required by s.151(5)(b)(i).
[66] The real issue of the dispute has been that the whole of the membership and the officers of TQ have transferred their Federal relationship from the CPSU to the ASU. On the evidence, there were some 130 members of TQ in June 2011 covered by these agreements. There is no evidence that they have been disadvantaged or would be practically impacted by the termination of these agreements. TQ can make alternative arrangements for Federal representation for them if necessary.
Order
1. For the reasons given above, I hereby order the termination, pursuant to s.151(9) of the RO Act of the Agreements, which were endorsed by Deputy President Acton, as follows:
● The State Public Service Federation v Queensland Professional Officers Association Union of Employees, [Print K6032] (the 1992 Agreement); and
● The State Public Service Federation v State Public Services Federation Queensland Union of Employees, [Print L2339] (the 1994 Agreement).
2. This decision will be forwarded to the General Manager for the action required by s.151(10).
3. In accordance with s.151(12) the termination of the agreements will take effect when the particulars of the termination are entered into the register in accordance with s.151(10) by the General Manager.
DEPUTY PRESIDENT
Appearances:
J. Nolan of counsel with M. Thomas for Together Queensland;
M. Perica for the CPSU.
Hearing details:
2014
Sydney:
April 15.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR551159>
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