United Voice

[2013] FWC 8354

[2013] FWC 8354

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act - Application for alteration of eligibility rules

United Voice
(D2013/103)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 24 OCTOBER 2013

Summary: application for consent to alterations of eligibility rule re prison employees and prisoner transport employees in Queensland - Fair Work (Registered Organisations) Act 2009 - 3 objectors - undertakings - deed of agreement - whether further approval under the Applicant’s rules of amended eligibility rule required where settlement writes down eligibility - ambit of original approval.

[1] This decision arises from an application by United Voice for consent to the alteration of the eligibility rules of the organisation pursuant to s.158(1) of the Fair Work (Registered Organisations) Act 2009 (“the RO Act”).

[2] I dealt with a jurisdictional point in relation to this application in my decision [2013] FWC 3829, published on 8 July 2013. In that decision I set out the background to the application, which is as follows, largely.

[3] The application itself was lodged on 12 February 2013. In accordance with Regulation 121 of the Fair Work (Registered Organisations) Regulations 2009 (“the RO Regulations”) a notice was published in the Government Gazette on 27 February 2013 stating that an application by United Voice had been received and any notice of objection was to be lodged no later than 35 days after the notice was published (that being 3 April 2013).

[4] The application and declaration appear to comply with the requirements of the RO Regulations. The application was made by the appropriate form for purposes of the Fair Work Commission’s Procedural Rules; the declaration is signed by the appropriate person (that being Ms Louise Tarrant, the National Secretary of United Voice); and the alteration appears to have been given effect in accordance with the rules of United Voice.

[5] An issue did arise in the initial processing of the application in respect of whether or not, consistent with Rule 19(h) of the rules of United Voice, at least three branches were present for the purposes of establishing the requisite quorum of the National Council. This matter was resolved by confirmation of this fact in writing from United Voice on 18 February 2013. No issue in relation to the requisite quorum being in existence therefore arises.

[6] On 2 April 2013 the Community and Public Sector Union - SPSF Group (“the CPSU”) and the Australian Workers Union of Employees, Qld (“the AWUEQ”) both separately lodged a notice of objection to the application.

[7] On 3 April 2013 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”) lodged a notice of objection to the application.

[8] Each of these objections, after some lengthy time, have been resolved by different means, which I will come to below.

The application

[9] Section 158 of the RO Act relevantly provides:

158 Change of name or alteration of eligibility rules of organisation

(1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:

(a) in the case of a change in the name of the organisation—the FWC consents to the change under this section; or

(b) in the case of an alteration of the eligibility rules of the organisation:

(i) the FWC consents to the alteration under this section; or

(ii) the General Manager consents to the alteration under section 158A.

(2) The FWC may consent to a change or alteration in whole or part, but must not consent unless the FWC is satisfied that the change or alteration has been made under the rules of the organisation.

[...]

(4) The FWC must not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the FWC, another organisation:

(a) to which those persons could more conveniently belong; and

(b) that would more effectively represent those members.

(5) However, subsection (4) does not apply if the FWC accepts an undertaking from the organisation seeking the alteration that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.

(6) The FWC may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of persons.

(7) The FWC may also refuse to consent to an alteration of the eligibility rules of an organisation if it:

(a) is satisfied that the alteration would change the effect of any order made by the FWC under section 133 about the right of the organisation to represent under this Act and the Fair Work Actthe industrial interests of a particular class or group of employees; and

(b) considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.

(8) Subsections (6) and (7) do not limit the grounds on which the FWC may refuse to consent to an alteration of the eligibility rules of an organisation.

(9) Where the FWC consents, under subsection (1), to a change or alteration, the change or alteration takes effect on:

(a) where a date is specified in the consent—that date; or

(b) in any other case—the day of the consent.

(10) This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:

(a) determined by the FWC under subsection 163(7); or

(b) proposed to be made for the purposes of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or

(c) proposed to be made for the purposes of a withdrawal from amalgamation under Part 3 of Chapter 3.

[10] The application, in its original form, seeks consent to alterations to United Voice’s eligibility rules. Specifically, the application seeks to amend Rule 3, Part 25, paragraph 1 - Conditions of eligibility - in the following terms:

In Queensland: persons employed by Australasian Correctional Management Pty Ltd ACN 051 130 600 (ACM) at the Arthur Gorrie Correctional Centre and by Corrections Corporation of Australia Pty Ltd ACN 010 291 641 (CCA) at the Borallon Correctional Centre.

[11] By deleting the above and replacing it with the following paragraph:

In Queensland: persons employed or engaged to work in any private correctional facility and prisoner transport, including the provision of security escort services to and from correctional facilities, courts and/or hospitals. Without limiting the generality of the foregoing, this includes persons employed by The GEO Group Australia Pty Limited (ACN: 051 130 600) at the Arthur Gorrie Correctional Centre and by Serco Australia Pty Limited (ACN: 003 677 352) at the Southern Queensland Correctional Centre.

[12] There was a further alteration proposed as a result of negotiations between the Applicant and the CEPU, and I will discuss this further below.

[13] The reasons given for the proposed alteration of the United Voice rules are said to include the following.

[14] Generally, the alteration as set out is said to update the rules because references to the employing companies, and the identities of the currently operating private prisons in Queensland, have changed. That is, the effect of the alteration as set out above (according to the Applicant) would be to update the references to the employing companies and the identities of the currently operating private prisons in Queensland.

[15] These steps are taken because the following changes have occurred:

• the contract to manage and operate the private prison at Arthur Gorrie Correctional Centre, once held by Australasian Correctional Management Pty Ltd is now held by The GEO Group Australia Pty Limited;



• the Borallon Correctional Centre (once managed and operated by Serco Australia Pty Ltd) was decommissioned in 2012 and has been replaced by the Southern Queensland Correctional Centre; and



• Serco Australia Pty Limited is now contracted to manage and operate the Southern Queensland Correctional Centre.

[16] The Applicant does not suggest that the rule alteration travels wider than the specific arrangements (though there has been some argument along the way as to whether the plain words of the proposed altered rule suggest otherwise).

[17] The alterations, in any event from the perspective of United Voice, would also provide coverage for persons employed or engaged to work in any private correctional facility and prisoner transport, including the provision of security escort services to and from correctional facilities, courts and/or hospitals. The substantive effect of the rule alteration will be that the rules will not need to be altered on each occasion there is a change in the operational arrangements affecting each facility.

[18] I note the application as made by the Applicant also gave as one of its reasons for the proposed alteration to the eligibility clause that “the altered rule also provides for similar eligibility for persons employed in any further private prisons opened, established or operated in the State of Queensland.”

Consideration

[19] The gist of the application is to ensure that the United Voice make “certain its coverage into the future insofar as private prisons and security escort/prison transport services are concerned.” In this respect, the industrial history of United Voice in the private corrections sector or industry in Queensland was set out in the statement tendered in these proceedings by Mr Michael Clifford, Coordinator of the Queensland Branch of the organisation.

[20] The application gave rise to various considerations as to its scope and intention, where there may have been potential for infringement, arguably, with the industrial coverage of the objecting organisations.

[21] But these issues have been dealt with in the course of the life of the application.

[22] In respect of the objections by the AWUEQ, I was informed appropriately that that organisation (effective 9 July 2013) has withdrawn its objection.

[23] In respect of the CEPU, the Applicant and that organisation have resolved (on 28 May 2013) their difference by amending the application for the proposed rule alteration (to incorporate an appropriate exception for the CEPU’s industrial interests). I refer here to the ‘Further Statement of Mr James Stedman’ as tendered in the proceedings, and as included at Annexure 1 to this decision.

[24] To this end, United Voice proposes to insert at Part 25 of its rules the word “electricians” following the word “teachers” in the proposed amended eligibility rule. That proposed amended eligibility rule now relevantly reads as follows:

Notwithstanding any provision of this rule to the contrary, the union shall have the eligibility to cover persons employed by the operators in the correctional facilities and prisoner transport described below, other than persons employed as managers, medical practitioners, teachers, electricians, nurses and persons employed in administrative and clerical positions by the operators including those who may become eligible solely as a result of the Private Correctional Facilities (LHMU/CPSU) Demarcation Order 1998 [Print P91081]:

In Queensland: persons employed or engaged to work in any private correctional facility and prisoner transport, including the provision of security escort services to and from correctional facilities, courts and/or hospitals.

Without limiting the generality of the foregoing, this includes persons employed by The GEO Group Australia Pty Limited (ACN: 051 130 600) at the Arthur Gorrie Correctional Centre and by Serco Australia Pty Limited (ACN: 003 677 352) at the Southern Queensland Correctional Centre.

[25] The remainder of the rule is unaffected by the application.

[26] In my view the further rule alteration as cited above in settlement with the CEPU (which has the effect of writing down the United Voice eligibility rule) falls within the scope and ambit of the original application and requires no added attestation or demonstration of approval. Such an outcome (a limitation on the scope of the rule alteration sought) may always have been a possibility, I add, by virtue s.158(2) of the RO Act. This would also suggest - in circumstances such as those before me - that there is no additional requirement on an applicant to demonstrate further approval under the rules for the alteration sought beyond that provided in the originating application.

[27] In respect of the CPSU, the Applicant and that organisation entered into a deed of settlement, which incorporated an undertaking by United Voice to the satisfaction of the CPSU’s interest.

[28] The CPSU withdrew its objection in consideration of United Voice giving an undertaking in the following terms:

United Voice shall, by itself, its officers or agent undertake to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the CPSU and the eligibility rules of United Voice and in particular, would raise no objection to the lawful participation by the CPSU in industrial matters which affect the members of the CPSU.

[29] The deed of settlement indicated that the CPSU and United Voice acknowledge that privatised correctional facilities are different from the new private correctional facilities and that the agreement related only to privatised correctional facilities.

[30] The effect of the undertaking is for the CPSU and United Voice to recognise each other’s organisation’s membership in respect of any privatised correctional facilities.

[31] United Voice also undertook not to object to any future rule change applications by the CPSU to cover employees at any privatised correctional facilities in Queensland and both organisations undertook not to actively recruit each other’s members at any privatised correctional facilities in Queensland.

[32] The further and detailed terms of the agreement between United Voice and the CPSU (which are relied upon) are a matter of record in these proceedings and form Exhibit JS6 to the ‘Further Statement of James Stedman’, referred to above. That agreement forms part of Annexure 1 to this decision.

[33] There are some remaining, outstanding matters that I need to expressly address.

[34] For the purposes of s.158(4) of the RO Act, I note that there are no objectors to the application such that any concerns in this respect would be agitated. But I note notwithstanding that there is an agreement (for the purposes of s.158(5) of the RO Act) between the CPSU and United Voice which is in an appropriate form to avoid any future demarcation disputes between the two organisations which may arise from an overlap between the eligibility rules, especially where there might be a further privatisation of existing government run correctional centres in Queensland.

[35] There is no concern afoot and no evidence to suggest that the agreement and undertaking entered into for the purposes of s.158(5) of the Act gives rise to any concerns for the purposes of s.158(6) of the RO Act. That is, the undertaking and agreement entered into between United Voice and the CPSU does not contravene an agreement or understanding of the relevant kind to which United Voice is a party.

[36] No issue arises in this application for the purposes of s.158(7) of the RO Act.

[37] There are no matters that would excite my residual discretionary power not to approve the application, as vested in me by s.158(8) of the RO Act. It would be inappropriate to exercise any such discretion absent some material concerns being in evidence. In any event, as the statement provided by Mr Michael Clifford attests, United Voice has a long history of industrial involvement in the private correctional facilities in Queensland and the application to provide greater certainty to its coverage is therefore not to be considered unusual or novel for that reason.

Conclusion

[38] On the basis of my considerations of the application, including in respect of the preliminary jurisdictional determination, the application for the alteration of the rules of United Voice is approved.

[39] The rule change will come into effect on Friday 1 November 2013.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr J. Nolan, of Counsel, for United Voice (instructed by Mr J. Payne, of Hall Payne Lawyers)

Mr T. Wright, of the CPSU

Hearing details:

Brisbane (and by telephone)

2013

24 October 2013

Printed by authority of the Commonwealth Government Printer

<Price code C, PR543718>

Annexure 1