Aged & Community Services Australia

[2017] FWC 1947

[2017] FWC 1947

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.18A RO Act—Registration of association

Aged & Community Services Australia
(D2017/2)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 6 APRIL 2017

Registration of Aged & Community Services Australia

[1] This decision concerns an application made by Aged & Community Services Australia (ACSA). ACSA is an association of employers and has applied for registration as an organisation under s.18A of the Fair Work (Registered Organisations) Act 2009 (the RO Act).

[2] I note that another application was made in tandem with ACSA’s s.18A application. Aged & Community Services NSW & ACT applied on 16 December 2016 under s.30(1)(a) of the RO Act for cancellation of its registration (the cancellation application). Both matters were heard before me on 30 March 2017. I granted the cancellation application. 1 I now turn to the current application.

[3] ACSA’s application under s.18A of the RO Act was made on 23 January 2017. The application was signed by Paul Sadler, ACSA’s President, and Lindsay Partridge, ACSA’s Chief Executive Officer, and fulfils the requirements of Regulation 21 of the Fair Work (Registered Organisations) Regulations 2009.

[4] Notice of the application was published in the Commonwealth of Australia Gazette on 31 January 2017. The period within which objections could be made closed on 7 March 2017. No objections were received in this period.

[5] The application was listed for hearing before me on 30 March 2017. ACSA was represented by Ms L Perrine.

[6] No other appearances were recorded, and the hearing commenced on the basis that there were no objections arising from the Gazette Notice, and no challenges to the application.

The legislation

[7] Section 18A of the RO Act sets out the requirements for an employer association to be able to be registered in the federal system as follows:

“18A Federally registrable employer associations

(1) An association of employers is federally registrable if:

(a) it is a constitutional corporation; or

(b) some or all of its members are federal system employers.

(3) An association of employers is not federally registrable if it has a member who is not one of the following:

(a) an employer;

(b) a person who was an employer when admitted to membership, but who has not resigned or whose membership has not been terminated;

(c) a person (other than an employee) who carries on business;

(d) an officer of the association.

(4) An association of employers is not federally registrable if:

(a) it is only a body corporate because it is or has been registered under this Act (whether before or after the commencement of this subsection); and

(b) it is not the case that some or all of the association’s members are federal system employers.”

[8] Section 19 of the RO Act sets out when the Commission must register a federally registrable association of employers as follows:

“19 Criteria for registration of associations other than enterprise associations

(1) The FWC must grant an application for registration made by an association (other than an enterprise association) that, under section 18, may apply for registration as an organisation if, and only if:

(a) the association:

(i) is a genuine association of a kind referred to in paragraph 18(a) or (b); and

(ii) is an association for furthering or protecting the interests of its members; and

(b) in the case of an association of employees—the association is free from control by, or improper influence from, an employer or by an association or organisation of employers; and

(c) in the case of an association of employers - the members who are employers have, in the aggregate, throughout the 6 months before the application, employed on an average taken per month at least 50 employees; and

(d) in the case of an association of employees - the association has at least 50 members who are employees; and

(e) the FWC is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Act and the Fair Work Act; and

(f) the rules of the association make provision as required by this Act to be made by the rules of organisations; and

(g) the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and

(h) a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation; and

(i) the registration of the association would further Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act; and

(j) subject to subsection (2), there is no organisation to which members of the association might belong or, if there is such an organisation, it is not an organisation:

(i) to which the members of the association could more conveniently belong; and

(ii) that would more effectively represent those members.

(2) If:

(a) there is an organisation to which the members of the association might belong; and

(b) the members of the association could more conveniently belong to the organisation; and

(c) the organisation would more effectively represent those members than the association would;

the requirements of paragraph (1)(j) are taken to have been met if the FWC accepts an undertaking from the association that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the organisation and the eligibility rules of the association.

(3) Without limiting the matters that the FWC may take into account in considering, under subparagraph (1)(j)(ii), the effectiveness of the representation of an organisation or association, the FWC must take into account whether the representation would be consistent with Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act.

(4) In applying paragraph (1)(e), the FWC must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under section 28 had the association been registered when the conduct occurred.

(5) The FWC must not, under this section, grant an application for registration of an association of employers or employees registered under a State or Territory industrial law if the association has a federal counterpart.”

Conclusion

[9] I am satisfied that the grounds for registration as an organisation are met. I grant the application for registration. ACSA will be registered as an organisation under the RO Act with effect from 7 April 2017.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms L Perrine appeared for the Applicant

Hearing details:

2017

Sydney

March 30

 1   [2017] FWC 1967

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