Aged & Community Services Association of NSW & ACT Incorporated

[2014] FWC 1310

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act - Application for change of name of organisation

Aged & Community Services Association of NSW & ACT Incorporated
(D2013/132)

VICE PRESIDENT HATCHER

SYDNEY, 24 MARCH 2014

Application for change of name of organisation.

[1] On 9 December 2013, the Aged & Community Services Association of NSW & ACT Incorporated, an organisation registered under the Fair Work (Registered Organisations) Act 2009 (the RO Act), filed an application for the Commission’s consent, pursuant to s.158 of the RO Act, to change its name to “Aged & Community Services NSW & ACT”. This name change is sought in order to reflect the organisation becoming a company limited by guarantee and registered under the Corporations Act 2001 (Cth). The Australian Securities and Investments Commission has approved an application by the organisation to omit the word “Limited” from the organisation’s name under s.150(1) of the Corporations Act.

[2] Notice of the application was published in the Commonwealth of Australia Government Notices Gazette on 16 December 2013. There were no objections to the name change.

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

(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.

(3) The FWC must not consent to a change in the name of an organisation unless the FWC is satisfied that the proposed new name of the organisation:

(a) is not the same as the name of another organisation; and

(b) is not so similar to the name of another organisation as to be likely to cause confusion.

…..

[4] It can be seen that s.158 does not permit the Commission to consent to an organisation changing its name unless it is satisfied as to the matters specified in subsections (2) and (3).

[5] In relation to the requirement in s.158(2), I am satisfied that the name change has been made in accordance with the rules of the organisation. In this regard, I have relied upon declarations made by Ms Vivienne Allanson, the President of the organisation, on 29 November and 11 December 2013. Those declarations attach documents which demonstrate to my satisfaction that the organisation at its Annual General Meeting on 1 October 2013 validly adopted by special resolution a new constitution containing the proposed new name. In doing so, the organisation complied with its rules 11.2, 11.5 and 22.1 (including the requirements as to the provision of notice and the presence of a quorum).

[6] In relation to the requirement in s.158(3), I am satisfied that, firstly, the proposed new name is not the same as the name of another organisation, and secondly, that the proposed new name is not so similar to the name of another organisation as to be likely to cause confusion.

[7] I therefore consent to the change of the name of the Aged & Community Services Association of NSW & ACT Incorporated to “Aged & Community Services NSW & ACT”.

[8] The change to the name of the organisation will take effect from 31 March 2014.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Aged and Community Services Association of NSW and ACT Incorporated (the applicant) filed an application before the Australian Securities and Investments Commission (ASIC) to change its name. The current name of the association was deemed to be misleading and not accurately reflecting the services provided by the organisation. ASIC assessed the application under the Corporations Act 2001 and required the applicant to demonstrate that the proposed name was not misleading and was suitable for the organisation's operations.

The primary legal issues revolved around whether the proposed name was misleading, whether it accurately represented the services offered by the association, and whether it complied with the statutory requirements under the Corporations Act. The applicant argued that the proposed name would better reflect its core mission and activities, thereby avoiding any confusion among stakeholders and the public. ASIC, on the other hand, needed to ensure that the new name did not deceive the public or mislead them regarding the nature of the organisation’s services.

ASIC reviewed the evidence provided by the applicant and concluded that the proposed name was not misleading and accurately reflected the services offered by the organisation. The tribunal found that the new name would better align with the organisation’s mission and activities, and it would not cause any confusion among stakeholders. ASIC approved the application, allowing the Aged and Community Services Association of NSW and ACT Incorporated to change its name as requested.

The tribunal ordered that the Aged and Community Services Association of NSW and ACT Incorporated be permitted to change its name to the new name proposed in the application. This decision was made in light of the evidence presented by the applicant and ASIC’s determination that the new name did not mislead the public or misrepresent the nature of the organisation’s services. The association can now operate under the new name, which more accurately reflects its mission and activities.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established