United Voice

[2013] FWC 3829

[2013] FWC 3829

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, 8 JULY 2013

Summary: application for consent to alterations of eligibility rule - Fair Work (Registered Organisations) Act 2009 - jurisdictional point in relation to objector’s status - whether objector must have eligibility - whether person might ever more conveniently belong to objector’s organisation - s.158(4)(a) and (b) - whether an objector need only be an “interested organisation” for sub regulation 124(1) of the RO Regulations - jurisdictional objection dismissed.

[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] The application 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 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).

[3] On its face, 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.

[4] 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.

[5] 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.

[6] 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.

The application

[7] 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—FWA consents to the change under this section; or

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

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

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

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

[...]

(4) FWA 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 FWA, 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 FWA accepts an undertaking from the organisation seeking the alteration that FWA 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) FWA 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) FWA 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 FWA 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 FWA may refuse to consent to an alteration of the eligibility rules of an organisation.

(9) Where FWA 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 FWA 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.

[8] The application 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.

[9] And replace 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.

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

[11] 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.

[12] 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.

[13] The Applicant does not suggest that the rule alteration travels wider than the specific arrangements (though its application and the plain words of the proposed altered rule suggest otherwise).

[14] The alterations 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.

[15] 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.”

Jurisdictional objection to the CPSU as an objector

[16] This decision deals with a particular jurisdictional objection raised regarding the status of the CPSU as an objector. There are of course other matters to consider in relation to the remaining objectors along with other considerations in relation to the substantive application itself.

[17] But at first instance, the Applicant and the objectors have sought that the Commission determine the above singular jurisdictional issue before such time as all other matters are brought to finality by a separate determinative process.

[18] The Applicant contends that currently there is no other organisation that is entitled to coverage of employees in private prisons in Queensland (subject to future formalised exclusions by settlement with other objectors).

[19] The Applicant contends that it is the sole organisation which is covered by (and named in the application clause of) the three enterprise agreements the application clause of which relates to the private prisons in Queensland.

[20] The Applicant argues that s.158(4) of the RO Act sets out a two-stage test that must be met in conjunction before such time as the Commission may consent to the alteration of an eligibility rule. The Applicant contends that the CPSU fails to meet either of the two tests, let alone the single two-stage test.

[21] Section 158(4) of the RO Act provides as follows:

(4) FWA 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 FWA, another organisation:

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

(b) that would more effectively represent those members.

[22] That is, consent must not be given if there is (in the opinion of the Commission) another organisation to which the persons could more conveniently belong and that organisation would more effectively represent those members.

[23] Thus, it is argued that should the CPSU be unable to satisfy the Commission that it is such an organisation (to which the persons could more conveniently belong and be more effectively represented by) that the objection must fail.

[24] There have been a number of decisions and orders of the Commission and its predecessors in relation to coverage in respect of private prisons under section 118A of the Workplace Relations Act 1996.

[25] An Order and a Decision of Senior Deputy President Harrison in CPSU, the Community and Public Sector Union, Re - 106/98 S Print P9108 [1998] AIRC 376 (24 March 1998) (“the Order”) and CPSU, the Community and Public Sector Union, re - 851/98 N Print Q2952 [1998] AIRC 967 (7 July 1998) (“the Decision”) are relevant to these proceedings.

[26] Her Honour’s Decision gave rise to an Order in the following relevant terms:

4.1 Pursuant to ss.118A(1) & (b) of the Act, the LHMU shall have the right to represent under the Act the industrial interests of persons employed by the operators in the correctional facilities and prisoner transport described in clause 4.3, including those who may become eligible solely as a result of this order, and the LHMU shall have the right to the exclusion of the CPSU.

4.2 Pursuant to s.118A(1)(c) of the Act, the CPSU shall not have the right to represent under the Act the industrial interests of such persons.

4.3 The employees referred to in clause 4.1 and 4.2 are -

In Queensland: persons employed by ACM at the Arthur Gorrie Correctional Centre and by CCA at the Borallon Correctional Centre.

[27] As will be observed, the Order relates to specific private prisons operating in Queensland in respect of particular corporate identities and does not extend to the situation should the contractual status of those prisons alter.

[28] Her Honour was not blind to the prospect of such developments having consequences for her Order’s future relevance. In this respect Senior Deputy President Harrison stated as follows in her Decision:

I earlier indicated that I would not make any order that dealt with the consequences of prospective contracts that were let to private prison operators. My reason is principally because the agreement in the form of the order that issued reflects individual considerations pertinent to each facility. To deprive the parties of an opportunity to address the similar and other relevant considerations at a time when it is known that a particular contract will be let was not, in my opinion, desirable. I have not overlooked the benefit that may be said to be associated with knowledge in advance which union may have representative rights.

[29] She went on to say:

A significant consideration which motivated me to make the order was that it was likely to reduce the industrial disputation that has been associated with certain private prisons.

[30] In view of the above, the Applicant contends that the coverage now sought by United Voice is no different to that which presently exists:

(a) the persons in relation to whom coverage is sought are the persons who are presumably industrially represented by United Voice;

(b) the persons employed subject to the terms of enterprise agreements by which United Voice is covered; and

(c) the effect of the rule alterations is consistent with the effective demarcation order issued by Senior Deputy President Harrison as set out in summary terms above.

[31] That is, even assuming the CPSU had eligibility (a matter which I will come to immediately below) the relevant persons could not conceivably more conveniently belong to the CPSU in circumstances where the Order discussed above extended coverage to United Voice, which has maintained continuing industrial representation of the relevant employees, and that there was no substantive change in the present circumstances relating to the facilities (for purposes of coverage).

[32] The Applicant continued and argued that the CPSU’s eligibility rules did not extend to persons employed in private prisons in Queensland.

[33] In this respect, Section II of the CPSU’s eligibility rule provides (relevantly) as follows:

The Union shall also consist of an unlimited number of persons employed, or usually employed by or on behalf of

(a) the Crown in the right of the States of New South Wales and Queensland;

[...]

And without limiting the generality of the foregoing shall include the following:

In Queensland

[...]

(j) the Queensland Corrective Services Commission.

The industry rule relevantly states as follows:

Section II

The union is also formed in connection with the industry covering the following:

[...]

In Queensland

[...]

(j) the Queensland Corrective Services Commission.

[34] I note that references to the Queensland Corrective Services Commission are now to be read as references to Queensland Corrective Services, owing to changes in governmental machinery arrangements.

[35] Thus it was argued, in any event, that the CPSU has no coverage of persons employed in private prisons in Queensland. The CPSU has eligibility to enrol as members employees of Queensland Corrective Services itself and employees of the Crown in the right of the State of Queensland.

[36] It was also contended that industrial representation in respect of public prisons in Queensland was also vested in the Together union, the federal counterpart of which is the Australian Municipal, Administrative, Clerical and Services Union (and not the CPSU).

[37] To summarise the Applicant’s position in respect of the CPSU’s objection:

• The relevant persons could not more conveniently belong to the CPSU than they could United Voice;



• The Order discussed above effectively excludes the CPSU from coverage in private prisons;



• The CPSU has no history of representation in the private prison industry in Queensland;



• United Voice has established processes and structures relating to representation in private prisons in Queensland;



• No other organisation has eligibility for membership of private prisons in Queensland; and



• The CPSU has no interest in public sector prisons in Queensland.

[38] Thus, in respect of the requirements of s.158(4) of the RO Act as set out above, United Voice argues that subsection 158(4)(a) of the RO Act cannot be met because the CPSU is not an organisation to which the persons could more conveniently belong; and even if they could more conveniently belong to the CPSU, the requirements of subsection 158(4)(b) of the RO Act could not be met as the CPSU could not more effectively represent those members than United Voice.

[39] Thus, the objector has no status in respect of the application (as it has been characterised by the Applicant) as it cannot have a genuine industrial interest in the proposed rule alteration.

The CPSU objection: Can the CPSU be an objector?

[40] Two central aspects of the objection made to the application by the CPSU include the following:

4.1 the proposed alteration to the Applicant’s eligibility rules if approved could give rise to a serious risk of a disturbance to the industrial peace which would prevent obstruct or restrict the performance of work in the industry effected and potentially jeopardise productivity;

4.2 if approved the application puts at risk the continued operation and applicability of a long-standing demarcation order of the Commission’s predecessor and consequently creates uncertainty.

[41] Regardless of the substantive claims, the Applicant held that unless the CPSU as an objector can satisfy the Commission of its status as such the claims it makes in respect of the application have no effect on the application itself.

[42] The CPSU challenges the claim that it has no status to make an objection against the application. It does so on the basis that the Applicant has argued in effect the merits case in relation to s.158(4) of the RO Act. This, the CPSU contends, is a matter wholly distinct from its right to make an objection against the application.

[43] The CPSU argues that the only jurisdictional test that an objector must face in respect of a right to object to an application to alter the eligibility rules of an organisation is that which is found at sub regulation 124(1) of the RO Regulations. Regulation 124 of the RO Regulations provides as follows:

124 Change of name or alteration of eligibility rules of organisation — objections (s 158)

(1) Any interested organisation, association or person (the objector) may, no later than 35 days after a notice of the receipt of an application under sub regulation 121(1) (the original application) is published in the Gazette, lodge with FWA a notice of objection to the change of name, or the alteration of the eligibility rules, to which the original application relates.

(2) The notice of objection must:

(a) be lodged with FWA; and

(b) comply with the requirements of regulation 14.

(3) FWA may allow an objector to amend a notice of objection if:

(a) a further application is made; and

(b) the objector satisfies FWA that the objector has further grounds for objection arising from the application mentioned in paragraph (a).

(4) Within 7 days after a notice of objection is lodged with FWA, the objector must serve a copy of the notice on the organisation that lodged the original application.

(5) An organisation:

(a) may, no later than 14 days after service on it under sub regulation (4) of a copy of the notice of objection, lodge with FWA, in answer to the objection, a written statement signed by an officer of the organisation authorised to sign the statement; and

(b) must, no later than 7 days after lodging a written statement under paragraph (a), serve a copy of the statement on the objector.

[44] In essence the CPSU therefore argues that the only jurisdictional precondition that needs to be addressed for the purposes of identifying a purported objector as an objector is whether the purported objector is an “interested organisation”, “association” or “person” for the purposes of regulation 124 of the RO Regulations.

[45] In this case, the CPSU contends it is an “interested organisation”.

[46] I do not take it that there can be any reasonable dispute that the CPSU is not a registered organisation under the Act. No investigation of the CPSU’s claim in that regard is warranted.

[47] Therefore the question becomes, is the CPSU an organisation with a sufficient interest for the purpose of sub regulation 124(1) of the RO Regulations?

[48] The CPSU conceded that it does not have the right to enrol and represent persons employed at the Arthur Corrie Correctional Centre and the Southern Queensland Correctional Centre.

[49] The CPSU contends that it is an interested organisation for a variety of reasons, all of which are related to its role in the correctional system (including prisoner transportation) in both the public and private sectors across Australia. It is enough to say that arrangements as to industrial representation are mixed across Australia and between the private and public sectors.

Conclusion

[50] It appears to me that the argument put forward by the CPSU has merit: an objector does not have to satisfy the requirements of s.158(4) of the RO Act in order to object to an application. An objector must only meet the requirements of sub regulation 124(1) of the RO Regulations.

[51] Sub regulation 124(1) of the RO Regulations does not make reference to s.158(4) of the RO Act. Nor do I think the sub regulation is in conflict with the substantive statutory provision. It is only necessary that an organisation (under the Act) have an interest in the application for it to qualify to make an objection to an application for the alteration of an eligibility rule, and sets no higher conditionality than that. I see no reason, moreover, to imply into sub regulation 124(1) of the RO Regulations - given its plain language - the requirements of s.158(4) of the RO Act.

[52] Sub regulation 124(1) of the RO Regulations, as I have suggested earlier, does not introduce any additional criteria in respect of the status of an objector or otherwise condition the status of an objector other than to require the objector, at least in one respect, be an “interested organisation”. In the end, an objection may be dismissed and be shown to have been futile, but it would be dismissed upon a full hearing of the requirements under s.158 of the RO Act, not by having the objection (as made by an “interested organisation”) struck out prematurely.

[53] Generally, I do not consider that an interested organisation need necessarily be an organisation with a capacity to enrol the relevant classes of employees pursuant to the eligibility rule in question. Ordinarily it would be expected that this would be the case for its objection to be made out. But an organisation may have an interest in an application under s.158 of the RO Act for reasons of the consequential effects or wider disturbances that could or might follow from an alteration to an eligibility rule, and which may affect its prospective industrial representative interests.

[54] That said, it appears to me further that the CPSU is an interested organisation for the purposes of the sub regulation. It is an organisation which has both a genuine interest and a sufficient interest in the application to make an objection (irrespective of the ultimate outcome under s.158(4) of the Act). I come to this view for a number of reasons.

[55] I note in this regard that the (demarcation) Decision and the Order referred to above did not seek to determine future arrangements beyond the current arrangements, and expressly indicated that any future arrangements other than in respect of the nominated corrections facilities should be subject to the interested parties addressing the range of relevant considerations. That is, there is no principle afoot that future arrangements are settled on the basis of current coverage, as the demarcation Decision suggests.

[56] In this respect, there is, I think, some uncertainty as to what it is that the Applicant is seeking by its application. I have alluded to this earlier. On one hand, the Applicant contends that the proposed rule alteration does not seek to travel any further than the current arrangements. But on the other hand, its own application supports an argument it is seeking to extend its coverage to “any further private prisons opened, established or operated in the State of Queensland”, including prisoner transportation and security escort service arrangements therein. The proposed rule alteration itself also has broad application in its current language.

[57] On its face, therefore, the proposed rule alteration has a level of generality that might support an interpretation that it travels further than replicating current arrangements only. And it is about this matter that the CPSU complains, because it excites that organisation’s demonstrated industrial interests (in all manner of future arrangements). The CPSU may not have coverage in relation to the current private sector prisons in Queensland, but it has such coverage in other states. The CPSU also has industrial coverage in respect of prisoner transportation in various state jurisdictions as well.

[58] It seems to me that an organisation such as the CPSU that has an interest in the correctional systems across Australia (including relevant transportation or escort arrangements) will have an entitlement under sub regulation 124(1) of the RO Regulations at the barest, to object to an application which impliedly or expressly affects such matters.

[59] I therefore dismiss the objection by United Voice. The application before me will now move to consideration of the substantive issues.

SENIOR DEPUTY PRESIDENT

Final written submissions:

United Voice - 12 June 2013

CPSU-SPSF - 24 June 2013

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