Fair Work Act 2009

s.768BB - Application for an order about coverage for employee organisations under a state instrument

Applications for an order about coverage for employee organisations under the State Transit Authority Bus Operations Enterprise (State) Award 2018 (NSW).

[1] On 7 June 2018, the Transport Workers' Union of Australia (NSW Branch) (the TWU) applied to the Fair Work Commission (the Commission) under s.768BB of the Fair Work Act 2009 (the FW Act) and reg.6.03A(d) of the Fair Work Regulations 2009 (the FW Regulations) for the following orders:

1. pursuant to s.768BB(1)(a) of the FW Act, the Rail, Tram and Bus Union of NSW (Bus and Tram Division) will not be covered by the copied State instrument that will be known as the State Transit Authority Bus Operations Enterprise (State) Award 2018 in relation to employees whose employment is transferred to Transit (NSW) Services Ltd T/A Transit Systems NSW; and

2. pursuant to s.768BB(1)(b) of the FW Act, the Transport Workers' Union of Australia will be covered by the copied State instrument that will be known as the State Transit Authority Bus Operations Enterprise (State) Award 2018 in relation to employees whose employment is transferred to Transit (NSW) Services Pty Ltd T/A Transit Systems NSW.

[2] On 6 July 2018, the Australian Rail, Tram and Bus Industry Union (the RTBU) applied for the Commission to make the following orders:

1. pursuant to s.768BB(1)(a) of the FW Act the Fair Work Commission orders that the Rail, Tram and Bus Union of NSW will not be covered by the State Transport Authority Bus Operations Enterprise (State) Award 2018 in relation to employees whose employment transferred to Transit (NSW) Services Pty Ltd; and

2. pursuant to s.768BB(1)(b) of the FW Act the Fair Work Commission orders that the Australian Rail, Tram and Bus Industry Union is covered by the State Transit Authority Bus Operations Enterprise (State) Award 2018 in relation to employees whose employment transferred to Transit (NSW) Services Pty Ltd.

1. During the course of proceedings, the parties noted that both applications should refer to Transit Systems West Services Pty Ltd (Transit Systems) rather than Transit (NSW) Services Pty Ltd, and they were amended accordingly.[1]

2. I heard the two applications in Sydney on 16 October 2018. The TWU was represented by M Gibian SC and G Webb, and the RTBU by I Taylor SC and L Saunders of counsel. The TWU tendered witness statements by Nimrod Nyols (lead official)[2] and Michael Pieri (Assistant State Secretary),[3] and the RTBU tendered witness statements by Roger Jowett (former National Secretary)[4] and Chris Preston (Branch Divisional Secretary).[5] None of the witnesses were required for cross-examination.

[5] On 19 December 2017, the Industrial Relations Commission of New South Wales made the State Transit Authority Bus Operations Enterprise (State) Award 2018 (the State award). The State award took effect from 1 January 2018. The State award is binding on the Secretary of the Department of Transport as head of the Transport Service of New South Wales (the Transport Service), the Rail, Tram and Bus Union of NSW (Bus and Tram Division) and employees employed as a member of the Transport Service in the STA Group whose classifications are listed in the award. These employees were made available by the Transport Service to the State Transit Authority to enable it to exercise its functions under the Transport Administration Act 1988 (NSW).

[6] The reference to the Rail, Tram and Bus Union of NSW was clearly to the industrial organisation of employees of that name registered under the Industrial Relations Act 1996 (NSW). It is not registered under the Fair Work Registered Organisations Act 2009 (the RO Act). While it was a transitionally recognised association (TRA) under Schedule 1 of the RO Act for a period of time, this status ended on 1 July 2017.

[7] From 1 July 2018, the New South Wales State government ceased providing omnibus transport services through the Transport Service for New South Wales for Region 6, covering Sydney's Inner West. Instead, these services are now provided by a private operator, Transit Systems.

[8] As part of the change to the omnibus services in Region 6, the employment of around 1200 employees was transferred from the Transport Service to Transit Systems.

It is uncontested by the parties, and I am satisfied, that this change was a transfer of business in accordance with s.768AD of the FW Act. I am also satisfied that the State award now forms the basis for a copied State award for each transferring employee in accordance with s.768AI of the FW Act. (Each transferring employee has his or her own copied State award.)[6]

In addition to employees that have been transferred from the Transport Service, Transit Systems has employed new employees as bus drivers to service the Region 6 contract.[7]

Historically, the TWU has covered and represented drivers in the private bus industry.[8] In a previous instance when a bus operation conducted by the NSW State Transit Authority moved to the private sector, RTBU members appear to have transferred their membership to the TWU. Conversely, on an occasion when a private sector bus operator was purchased by the State Transit Authority, the transferring employees appear to have changed their union membership from the TWU to the RTBU.[9]

An exception to this pattern appears to have occurred with the recent privatisation of Newcastle Buses. On 1 July 2017, the operation of this service transferred from the Transport Service to Keolis Downer. (I note that the contract with Keolis Downer involves ferries and light rail as well as buses.) The RTBU has continued to represent the employees whose employment transferred to Keolis Downer, and the vast majority of those employees remain RTBU members.[10]

Prior to winning the contract for Region 6, an associated entity of Transit Systems (Transit (NSW) Services Pty Ltd) already held the contract for Region 3. The TWU is the only union that represents bus drivers operating out of Region 3. There is an enterprise agreement that applies to these employees: the Transit (NSW) Services Pty Ltd, Transport Workers Union and Bus Drivers Enterprise Agreement 2017 (the Transit Services enterprise agreement). The TWU is the only union covered by that agreement.[11]

New employees engaged to work in Region 6 appear to be employed under the same terms and conditions of employment as employees engaged under the Transit Services enterprise agreement.[12]

From around March 2018, Transit Systems granted the TWU access to new employees engaged to service the Region 6 contract. As of August 2018, it appears that the TWU had over 30 members, primarily made up of new employees.[13]

As of August 2018, the RTBU had 880 members working as bus drivers in Region 6. This appears to include around 80 new employees.[14]

It appears that employees normally join the Rail, Tram and Bus Union of NSW and the RTBU at the same time.[15] A copy of a membership application form was tendered, which includes a joint application to both the RTBU and the State-registered union.[16]

[18] Section 768BB is within Part 6-3A of the FW Act. Section 768AA provides a guide to Part 6-3A:

'This Part provides for the transfer of certain terms and conditions of employment when there is a transfer of business from a non-national system employer that is a State public sector employer (called "the old State employer") to a national system employer (called "the new employer").

A transfer of business involves the transfer of employment of one or more employees of the old State employer to the new employer. Each of those employees is a "transferring employee".

If there is a transfer of business, then this Part provides for certain terms and conditions of employment with the old State employer to be transferred to the employment of the transferring employee with the new employer.'

This Part achieves the transfer of those terms and conditions by creating a new instrument - a "copied State instrument" - for each transferring employee. The new instrument is a federal instrument and is enforceable under this Act.'

[19] The Part provides for two types of copied State instruments - one of which is a copied State award. A copied State award copies the terms of a State award that covered the transferring employees and the old State employer immediately before the termination of the employee's employment with the old State employer. The copied State award is taken to include the same terms as were in the original State award immediately before the termination time.

[20] Part 6-3A was inserted into the FW Act by the Fair Work Amendment (Transfer of Business) Act 2012 (the Amending Act). Paragraph 58 of the Explanatory Memorandum to the Bill that would later become the Amending Act (the Explanatory Memorandum) said:

'58. FWA can also make an order that a copied State instrument for a transferring employee does or does not cover an employee organisation but instead covers, or will cover, another employee organisation. For example, FWA could order that one or more federal counterparts were covered by a copied State instrument where the corresponding State registered organisation(s) no longer has coverage. FWA must have regard to the federal counterpart(s) when making this type of order.'

[21] Section 768AN includes the following:

'768AN When does a copied State instrument cover a person?

(1) A copied State instrument for a transferring employee covers the employee and the new employer in relation to the transferring work from the employee's re-employment time.

(2) A copied State instrument for a transferring employee covers an employee organisation in relation to the employee if:

• (a) the instrument covers the employee because of subsection (1); and

• (b) immediately before the employee's termination time, the original State award or original State agreement for the instrument covered (however described in the original State award or original State agreement or in a relevant law of the State) the organisation in relation to the employee. ...'

[22] The Explanatory Memorandum explained these provisions thus:

'25. Generally, a copied State instrument covers the transferring employee and employer and any employee organisations covered by the original State instrument immediately before the termination time of the employee as well as the new employer from the re-employment time of the employee.

26. A copied State instrument applies to a transferring employee, and an organisation that was required to comply with, or could enforce, the terms of the original State instrument immediately before the termination time of the employee. It also applies to a new employer from the date the transferring employee is employed by that employer if the old employer was required to comply with, or could enforce, the terms of the original State instrument immediately before the termination time of the employee.'

[23] Division 6 of Part 6-3A deals with Commission orders about coverage of copied State instruments. It allows the Commission to make an order that a copied State instrument for a transferring employee does not, or will not, cover an employee organisation but that it instead covers, or will cover, another employee organisation. In particular, s.768BB provides as follows:

'768BB FWC orders about coverage for employee organisations

(1) [FWC coverage order] The FWC may make an order that:

• (a) a copied State instrument for a transferring employee that would, or would be likely to, cover an employee organisation (the first employee organisation) in relation to the transferring employee because of subsection 768AN(2) does not, or will not, cover the organisation; and

• (b) another employee organisation (the second employee organisation) is, or will be, covered by the copied State instrument in relation to the employee.

(2) [Relevant consideration] When making an order under subsection (1), the FWC must consider whether the second employee organisation is a federal counterpart (within the meaning of section 9A of the Registered Organisations Act) of the first employee organisation.

(3) [Regulations may prescribe circumstances in which FWC may make order]

(a) prescribe circumstances in which the FWC may make an order for the purposes of subsection (1); and

(b) otherwise make provision in relation to the making of the order.

(4) An order under subsection (1) must be made in accordance with any regulations that are made for the purposes of subsection (3).'

[24] Regulation 6.03A of the FW Regulations provides as follows:

'6.03A FWA orders about coverage for employee organisations

For paragraph 768BB (3) (a) of the Act, a circumstance in which FWA may make an order mentioned in subsection 768BB (1) of the Act is that the order is to be made:

(a) on FWA's own initiative; or

(b) on application to FWA by a transferring employee, or a person who is likely to be a transferring employee; or

(c) on application to FWA by the new employer, or a person who is likely to be the new employer; or

(d) on application to FWA by an employee organisation that is entitled to represent the industrial interests of an employee mentioned in paragraph (b).'

[25] The parties' submissions identified at least three issues to be determined. The first concerns a jurisdictional objection which, if upheld, would adversely affect both applications. That objection is based on the claim that the reference in s.768BB of the FW Act to 'first employee organisation' can only be to a federally-registered organisation; as both applications seek orders to remove coverage from a State-registered organisation they must, according to this argument, be invalid.

[26] The second issue that arises is another jurisdictional objection to the RTBU's application, namely, whether it is an organisation that falls under reg.6.03A(d). As reg.6.03A(d) effectively provides that only an organisation that is entitled to represent the industrial interests of a transferring employee may make an application under s.768BB, if correct, this would invalidate the RTBU's application.

[27] The third issue concerns various discretionary considerations in relation to both applications, if the jurisdictional objections are not upheld.

[28] The RTBU's primary position, as expressed in its written submissions, is that the Commission cannot make the orders sought by either application as:

1. A s.768BB order requires, as a jurisdictional prerequisite, there to be an 'employee organisation' within the meaning of the FW Act covered by the relevant copied State instrument; and

2. There is no such employee organisation in respect of the relevant copied State instrument.

[29] It is not in contention that if the Commission makes an order under s.768BB(1), that order must engage both sub-ss.(1)(a) and (1)(b). In other words, it is not open to the Commission to make an order that a second employee organisation is, or will be, covered by the copied State instrument (s.768BB(1)(b)) without also ordering that the copied State instrument does not, or will not, cover the first employee organisation (s.768BB(1)(a)). This means that it is a necessary jurisdictional fact that there be a 'first employee organisation' in respect of which the copied State instrument would or would be likely to cover.

[30] The RTBU pointed out that s.12 of the FW Act defines 'employee organisation' as 'an organisation of employees'. Section 12 further defines 'organisation' as 'an organisation registered under the Registered Organisations Act'. No different definition is found within s.768BB or Part 6-3A.

[31] The RTBU submitted:

'That the section is intended to alter coverage of an "employee organisation" is further reinforced by the second paragraph of s768AZ, which sets out the purpose of the Division. It states:

[The Division] also allows FWC to make an order that a copied State instrument for a transferring employee does not, or will not, cover an employee organisation but instead covers, or will cover, another employee organisation.'[17]

[32] The RTBU pointed out that had the legislature intended to refer to industrial associations other than those registered under the RO Act, it could have done so easily, noting that the FW Act contains a definition of 'industrial association' in s.12, which includes employee associations 'registered or recognised as such an association (however described) under a workplace law'. The RO Act also refers at s.9A to associations of employees registered under State or Territory laws.

[33] The RTBU rejected the proposition that there is any basis for finding that a 'contrary intention' arises that would lead to the expression 'employee organisation' being given a different meaning in s.766BB(1)(a) from its defined meaning when used in the expression 'first employee organisation'. It submitted that:

1. The legislature chose to adopt a defined expression that is consistently used throughout the FW Act and the RO Act to mean a particular type of industrial association (that is, state-registered associations that were also employee organisations, rather than any state-registered association';

2. It is difficult to consider that the legislature intended 'employee organisation' to be given a different meaning when used in the expression 'first employee organisation' than when used in respect of the 'second employee organisation', given they are in the same sub-section;

3. The 'second employee organisation' is said to be 'another employee organisation', which can only be read as intending that 'employee organisation' has the same meaning in both cases; and

4. It is consistent with the text and purpose of Part 6-3A to read the use of such a defined expression as only intended to apply in circumstances where a state-registered association is an employee organisation.

[34] The RTBU submitted that the Amending Act was made against a background in which State-registered organisations were at the time:

'... capable of being recognised as employee organisations on a transitional basis. In drafting the Act the legislature can be taken to be aware that such recognition was transitional. In other words, that it was only for a limited period of time that state-registered organisations were capable of being simultaneously recognised as employee organisations. For that period of time such a state-registered organisation (and not any other state-registered association) fell within the meaning of that expression when used in s768AN(2) and s768BB(1)(a). Such an employee organisation was, by dint of s768AN(2), an organisation that was covered by the instrument. However that coverage would in effect lapse at the end of the transitional period, causing a potential issue. It was against that background that the latter section provided that an application could be made to transfer coverage to "another" employee organisation from a state-registered association if (and only if) the state-registered association was recognised as an employee organisation (and so, pursuant to s768AN(2) would, or would likely to be, covered by the instrument. In other words, the legislature was intentionally creating a provision that would have effect for a transitional period, which would only apply to particular state-registered organisations that were federally recognised, to allow a ready mechanism for their coverage, recognised during that transitional period by 768NN(2), to be transferred to their federal counterpart. This was part of an overall scheme that applied in those years, that allowed, in effect, for organisations to follow their members into the federal system.'[18]

[35] The RTBU also drew attention to the text of the Explanatory Memorandum including the following:

'It is in this context that the Bill modifies the operation of the Registered Organisations Act to ensure that an employee association that is registered under relevant state legislation and which represents non-national system employees can continue to represent those employees in the federal system (subject to the employees' ongoing eligibility for membership of the association), for a transitional period, to ensure that those employees are not deprived of the right to representation.

A State-registered association which obtains transitional recognition under the amendments in the Bill will be able to act in the federal system as a Transitionally Recognised Association (TRA). Whether that particular State-registered employee association will continue to represent employees in the federal system beyond the transitional period will depend on whether it makes a successful application to become a recognised State-registered association (RSRA) under Schedule 2 of the Registered Organisations Act. A State-registered association can only maintain ongoing recognition in the federal system if it can be shown that it does not have a `federal counterpart' (see Registered Organisations Act s 9A) and is registered under a prescribed state law (Registered Organisations Act clause 1 of Schedule 2). The limitation on ongoing recognition where an association has a federal counterpart is intended to prevent costly and disruptive demarcation disputes.

Currently, there is no ability for a State public sector employee who transfers to the national system to remain represented by their State employee association. In this way, the Bill promotes the rights outlined above through establishing a framework under which a State public sector employee who transfers to employment with a national system employer may, conditional upon certain requirements being met by the State employee association, remain represented by the State employee organisation, at least for a transitional period. This period is intended to give the State association and the employee a period of time to adjust to the effects of being covered by a copied State instrument.'

[36] The RTBU submitted that this extract confirms that the legislature was providing a mechanism that was intended to apply only for state-registered associations that were recognised as employee organisations and only for the transitional period.

[37] The RTBU added that there is no need to find a contrary intention, in the sense that it is needed to allow Part 6-3A to work effectively. The copied State award could operate effectively even if no employee organisation was covered by it.

[38] The TWU countered that:

'The obvious intent of 768BB is to permit the Commission to substitute coverage by a State-registered union which was party to or covered by the relevant State award or agreement by ordering that the copied State instrument instead cover a federal counterpart union or other appropriate union following the transfer of employees to the federal system.'[19]

[39] In support of this position, the TWU referred to paragraph 58 of the Explanatory Memorandum, cited earlier. It submitted that the reference to an 'employee organisation' in ss.768AN(2) or 768BB of the FW Act cannot be restricted to an organisation registered under the RO Act. To do so would render the provision incapable of any operation. The 'first employee organisation' referred to in s.768BB(1)(a) must be able to be a State-registered organisation.

[40] The TWU submitted that the term 'employee organisation' in s.768BB cannot have been intended to be limited to organisations registered under the RO Act and there is an obvious 'contrary intention' demonstrated in the relevant provisions of the FW Act which make the application of the definition in s.12 of the FW Act unworkable.

[41] The TWU described the purpose of an order under s.768BB(1) as being to ensure that employees covered by a copied State instrument are able to be represented by an appropriate union with respect to the enforcement and operation of the copied State instrument.

[42] The TWU submitted that that purpose would be defeated if the 'first employee organisation' could only be an organisation which was already registered under the RO Act and capable of participating in the federal system under the FW Act. There would be no utility or purpose in making an order under s.768BB(1) if the 'first employee organisation' is registered under the RO Act, whether transitionally or otherwise, because the 'first employee organisation' would, in those circumstances, already be able to enforce and participate in the application of an instrument under the FW Act.

[43] The TWU also submitted that the RTBU was in error in suggesting that s.768BB was intended to apply for a 'transitional period'. The reference to the Explanatory Memorandum relied on by the RTBU in support of this proposition do not refer to s.768BB.

[44] I am satisfied that the TWU's submissions in relation to this jurisdictional objection are correct. As is stated in Pearce and Geddes:

'There is a presumption that defined words in a statute have their defined meanings which is not to be displaced without good reason': per Handley AJ in Qantas Airways Ltd v Chief Commissioner of State Revenue [2008] NSWSC 1049 at [38]. However, all definitions of the meaning of words or phrases used in legislation are to be read either expressly or impliedly as subject to the qualification 'unless the contrary intention appears': Hall v Jones [1942] NSWStRp 22; (1942) 42 SR (NSW) 203...;Transport Accident Commission v Treloar [1992] VicRp 31; [1992] 1 VR 447 at 449; Betella v O'Leary [2001] WASCA 266 at [13].'[20]

1. Pearce and Geddes also refer to a discussion by Mahoney JA in Deputy Commissioner of Taxation (NSW) v Mutton,[21] which provides a number of circumstances where a definition should not be followed. One of these is where if the definition were applied, the provisions of, or the procedure established by, the section in which the defined term is used would not appropriately work. They also refer to the further point made by Mildren J in Kennedy v Anti-Discrimination Commission of the Northern Territory[22] that for this test to be made out, it is not necessary that operation of the provision is impossible. It is sufficient if the application of the definition would result in the operation of the section in a way which the legislature clearly did not intend.[23]

[46] I am satisfied that if the term 'first employee organisation' in s.768BB were to be read as referring solely to organisations registered under the RO Act, the provision would not work as the legislature intended. It is apparent, both from paragraph 58 of the Explanatory Memorandum and the provisions of the Amending Act when considered as a whole, that the purpose of s.768BB is to remove coverage from a union that was a party to the State instrument that has been 'copied' to create a new federal instrument (and was therefore automatically 'covered' by it), and instead order that a more appropriate (federal) union now have coverage. The normal reason for doing so would be that the union that was a party to the State instrument does not have coverage for the employees in the federal system. In some cases - though not all - this would be a matter of removing a State union from coverage of the copied State instrument and replacing it with its federal counterpart. However, in almost all cases, one could imagine the 'first employee organisation' would be registered in the State system - and not the federal system. Thus for the provision to work 'appropriately', the term 'first employee organisation' cannot be restricted to unions registered under the RO Act - despite the definition of the term 'organisation' in s.12 of the FW Act.

[47] As the TWU put it:

'The obvious purpose of the provision is to permit the Commission to make an order substituting the appropriate federally-registered union for a state-registered organisation that is covered by a copied state instrument that is taken to come into existence as a consequence of the transferring employees from state public sector employment to a federal or national system employer.'[24]

[48] For the sake of completeness, I note that it is possible in the States of New South Wales, Tasmania and South Australia for federally-registered organisations to be parties to State-based instruments. However, there is nothing in the scheme of the legislation or the Explanatory Memorandum to suggest that the operation of s.768BB is restricted to the (unusual) situation where the State instrument that is copied across already covers a federally-registered organisation. Moreover, if the union that was covered by the copied State instrument was already federally registered, it is hard to imagine many circumstances where there would be any need for an order under s.768BB.

[49] I also note that while the RTBU couched its position as being consistent with the definition of 'organisation' contained in s.12 of the FW Act, in practice, it submitted that the reference to 'first employee organisation' was to TRAs. While TRAs are given the capacity to operate in the federal system on a transitional basis, they are not registered organisations.

[50] In support of its position, the RTBU refers to the Explanatory Memorandum. However, it is clear that the provisions it cites refer not to s.768BB of the FW Act, but to changes the Amending Act made to the RO Act. These amendments to the RO Act are described at paragraph 120 of the Explanatory Memorandum:

[51]

'120. Item 68 inserts new subclause 2(1A) into Schedule 1 of the Fair Work (Registered Organisations) Act 2009 (Registered Organisations Act) to enable certain State-registered associations to apply to the General Manager of FWA for transitional recognition in the federal workplace relations system. Provision for a new category of transitional recognition in Schedule 1 is intended to provide State-registered associations, subject to the limitations set out in new subparagraphs 2(1A)(a) to (e) and the relevant eligibility rules, with the opportunity to be transitionally recognised in the federal system because they are, or are likely to be, covered by a copied State instrument. State-registered associations will be able to make application under this provision within five years of commencement or such later time prescribed by regulation.

121. New subparagraph 2(1A)(d) makes clear that State-registered associations which are already transitionally recognised under subclause 2(1) of Schedule 1 cannot apply for transitional recognition under new subclause 2(1A).'

[52] These amendments to the RO Act effectively provide an alternative path to the one contained in s.768BB to deal with the situation where a copied State instrument covers a State-registered association. Both sets of provisions are designed to deal with the situation where the union covered by the copied State instrument is unable to operate in the federal system. Section 768BB allows that union to be replaced by a more appropriate union, whereas the TRA provisions allow the State union - for a limited time - to operate in the federal system.

[53] The first jurisdictional objection to the applications is accordingly dismissed.

[54] The second jurisdictional objection concerns whether the RTBU is an organisation that is entitled to represent the industrial interests of the relevant employees. As reg.6.03A(d) relevantly provides that only organisations capable of representing the industrial interests of a transferring employee may make an application under s.768BB, if correct, this would invalidate the RTBU's application.

[55] The TWU submitted that the rules of the RTBU mean that it is generally unable to represent employees in the industry of bus operations outside of particular State government authorities.

[56] The eligibility rule for membership of the RTBU is set out in its Rule 4. Rule 4 relevantly provides as follows:

'(1) The following shall be eligible to become members of the Union:-

(i) permanent or casual employees, including persons training for employment, in the tramway services of Australia and motor omnibus services and trolley bus services and light rail services run in conjunction therewith or controlled thereby, and also employees of the State Transit Authority of New South Wales, the Public Transport Corporation of Victoria, the State Transport Authority of South Australia, the Metropolitan Transport Trust Tasmania, the Brisbane City Council and the Metropolitan (Perth) Passenger Transport Trust and any Commonwealth, State or Local Government, in tramway or motor omnibus or trolley bus or light rail services together with such other persons whether employed in the industry or not who at any time when training for employment or working in the tramway, trolley bus, omnibus or light rail services have been admitted as members and who continue that membership.

... provided that, except as provided in Sub-Rules 4(3), 12(3) and 12(4), a person shall only be eligible to remain as a member while he/she continues to meet one or other of the eligibility criteria specified in the foregoing paragraphs.

(3) Notwithstanding the proviso to Sub-Rule 4(1), a person who is admitted to membership pursuant to the provisions of Rule 10 and who subsequently is elected as a paid Office Bearer of the Union or becomes an employee of the Union, shall be entitled to remain as a member while holding such Office or engaged in such employment.

[57] I am satisfied that Rule 4(1)(i) covers three distinct groups of employees.

[58] First, there are

'permanent or casual employees, including persons training for employment, in the tramway services of Australia and motor omnibus services and trolley bus services and light rail services run in conjunction therewith or controlled thereby'.

I am satisfied that this only covers employees of bus services run in conjunction or controlled by a tramway service. This construction is consistent with the decisions of Sheather C in Altona Bus Lines[25] and of the Full Bench in TWU v Serco.[26]

'employees of the State Transit Authority of New South Wales, the Public Transport Corporation of Victoria, the State Transport Authority of South Australia, the Metropolitan Transport Trust Tasmania, the Brisbane City Council and the Metropolitan (Perth) Passenger Transport Trust and any Commonwealth, State or Local Government, in tramway or motor omnibus or trolley bus or light rail services.'

In effect, this group includes employees employed by government bus services.

'such other persons whether employed in the industry or not who at any time when training for employment or working in the tramway, trolley bus, omnibus or light rail services have been admitted as members and who continue that membership.'

Prima facie, this includes employees who joined the RTBU while employed in a bus service and who have continued their membership - even if they no longer work in the industry. The implication for present purposes is that employees who worked for the Transport Service and who joined the RTBU at that time - and who have retained their membership since being transferred to Transit Systems - are still eligible to be members of the RTBU, a concept Mr Gibian described during these proceedings as 'legacy membership'.

[61] The TWU opposed this reading of the third category of employees. It referred to the words towards the end of Rule 4(1) which say:

'... provided that, except as provided in Sub-Rules 4(3), 12(3) and 12(4), a person shall only be eligible to remain as a member while he/she continues to meet one or other of the eligibility criteria specified in the foregoing paragraphs.'

[62] The TWU submitted that these words:

'...are plainly intended to limit coverage to circumstances in which a person remains employed in a substantive area of coverage of the RTBU, subject to sub-rules 4(3), 12(3) and 12(4). Sub-rule 4(3) relates to elected officers and sub-rule 12(3) and (4) deal with Life Membership and Associate membership. Those provisions deal with the limited circumstances in which membership can persist notwithstanding that a person has ceased employment in an area of the union's coverage.'[27]

[63] I see no reason to limit the third category of employees in Rule 4(1)(i) in the way the TWU has proposed. The words the TWU cites provide that (subject to the special situations relating to Life Members, Associate Members and officers and staff) one can only remain a member of the RTBU if one continues to meet the eligibility criteria set out in the foregoing paragraphs (which includes Sub-rule (4)(1)(i)). However, former employees of a public sector bus operation such as the Transport Service who have subsequently continued their membership continue to meet the eligibility criteria in the relevant paragraph. 'Legacy membership' is itself 'one or other of the eligibility criteria specified' provided in 'one of the foregoing paragraphs'. I note that the rules operate differently for former rail employees who do not have in their relevant eligibility sub-rules an equivalent category of 'legacy membership' (though there is scope for some retired rail workers to remain as members of the RTBU.) The words towards the end of Rule 4(1) cited by the TWU are likely to have more effect in relation to these groups of employees.

[64] In conclusion, I am satisfied that employees who were previously members of the RTBU while working for the Transport Service and who have retained that membership after being transferred to Transit Systems are entitled to continue to be members of the RTBU.

[65] The TWU also submitted that even if this were true, it did not necessarily mean that the RTBU is entitled to represent the industrial interests of the relevant employees.

'The entitlement to represent industrial interests of persons is not membership, it is defined by the scope of the eligibility. And the scope of the eligibility is the scope of the group of persons, employees, who are able to become members.'[28]

1. The TWU cited in support of its position the judgement of the High Court in Regional Express Holdings.[29] However, I do not consider that judgement to be supportive of the TWU's position. That case revolved around whether 'the condition "entitled to represent the industrial interests of" is logically to be understood as something which may arise otherwise than from a person's membership of the organisation.'[30] In particular, the issue was whether an organisation could be entitled to represent the interests of a person under the FW Act even if that person was not its member.

2. The Court found that the term 'entitled to represent the industrial interests of the employee' in the FW Act is used to mean 'an organisation's entitlement to represent the industrial interests of persons eligible for membership of the organisation.'[31]

[68] In my view, there is no doubt that the RTBU is entitled to represent the interests of its members who fall within the scope of its eligibility rule.

[69] Given my findings on the jurisdictional objections, there are in effect four options before me. I could make only the orders sought by the TWU. I could make only the orders sought by the RTBU. I could grant both applications. Or I could reject both applications and make no order at all.

1. It is clear that there is no requirement for an award of this Commission to cover an organisation. During the process of award modernisation, a Full Bench of the Australian Industrial Relations Commission (AIRC) considered the issue of whether organisations should be covered by modern awards. It asked what legal rights would accrue to an organisation if it were named in a modern award as being covered by it.[32]

2. The Full Bench noted that an organisation's right of entry for discussion purposes or to investigate award breaches would not be affected by award coverage.[33] Nor would the ability to enforce an employee's entitlements under an award, or to vary an award.

'We have concluded that under the proposed legislative scheme awards will not be instruments for delineating rights of industrial coverage, entry to premises or enforcement of awards. Indeed we have been unable to discover any substantive legal right which would accrue to a registered organisation by virtue of being covered by a modern award.'[34]

1. The AIRC adopted a general principle of not naming any registered organisations as being covered by modern awards,[35] an approach that has been followed subsequently.

[73] I am satisfied that the copied State award could similarly operate effectively in the absence of a named federally-registered organisation.

[74] I consider that the most significant effect of any order I might make would be to signal to the employees which is the 'appropriate' union to represent them. However, I consider that to do so is neither necessary nor desirable.

[75] It is not in dispute that the eligibility rule of the TWU encompasses all the employees employed as bus drivers by Transit Systems, both 'transferring' and 'new' employees. In other words, all those employees are already able properly to join the TWU if they so wish - whether or not they have previously been RTBU members. Moreover, the TWU has the capacity under the FW Act to represent their industrial interests, whether they join the TWU or not.

[76] However, I am also satisfied that all those employees who were previously RTBU members while employed by the Transport Service and who have retained that membership since being transferred to Transit Systems are entitled to remain members of the RTBU and be represented by that organisation. It appears that the great bulk of transferring employees fall into this category.

[77] I see no reason to signal to RTBU members who have transferred from the Transport Service that they should leave the RTBU and now be represented by the TWU - unless they wish to do so, of course.

[78] Equally, I see no reason why the Commission should signal to RTBU members that they should remain with the RTBU, if they would prefer not to do so. It is also important to recognise that there may be some transferring employees who would not be eligible to be a member of the RTBU (in particular, if they had not been an RTBU member while employed by the Transport Service, or have allowed their membership to lapse).

[79] In all the circumstances, I have decided not to make any orders. Both applications are refused.

M Gibian SC with G Webb for the Transport Workers' Union of Australia.

I Taylor SC with L Saunders of counsel for the Australian Rail, Tram and Bus Industry Union.

Transport Workers' Union of Australia: 19 December 2018.

Australian Rail, Tram and Bus Industry Union: 13 November 2018.

1. [1] PN19-25.
2. [2] Exhibit 1.
3. [3] Exhibit 2.
4. [4] Exhibit 4.
5. [5] Exhibit 3.
6. [6] Explanatory Memorandum, Fair Work Amendment (Transfer of Business) Bill 2012 [19].
7. [7] Exhibit 1 [15].
8. [8] Ibid [9]-[10].
9. [9] Exhibit 2 [41]-[52].
10. [10] Exhibit 3 [42]-[45].
11. [11] Exhibit 2 [56]-[58].
12. [12] Exhibit 1 [16].
13. [13] Ibid [20]-[22].
14. [14] Exhibit 3 [67]-[68].
15. [15] Exhibit 4 [30].
16. [16] Exhibit 3 attachment CP5.
17. [17] RTBU written submissions (20 September 2018) [13].
18. [18] Ibid [16].
19. [19] TWU written submissions in reply (12 October 2018) [4].
20. [20] D C Pearce and R S Geddes, Statutory Interpretation in Australia, (LexisNexis Butterworths, 8th ed, 2014) [6.67].
21. [21] (1998) 12 NSWLR 104, 108.
22. [22] [2006] NTCA 9; (2006) 226 FLR 34 [29].
23. [23] Ibid [6.68].
24. [24] PN176.
25. [25] Altona Bus Lines Pty Ltd & Ors v Australian Tramway and Motor Omnibus Employees' Association [1984] CthArbRp 519; (1984) 295 CAR 628.
26. [26] Transport Workers' Union of Australia v Serco Australia Pty Ltd (1996) 67 IR 28.
27. [27] TWU written submissions in reply (12 October 2018) [25].
28. [28] PN283.
29. [29] Regional Express Holdings Ltd v Australian Federation of Air Pilots (2017) 276 IR 454.
30. [30] Ibid [22].
31. [31] Ibid [45].
32. [32] (2008) 177 IR 364 [15].
33. [33] Ibid [18].
34. [34] Ibid [20].
35. [35] Ibid [22].

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