Aged & Community Services NSW & ACT

[2015] FWC 904

[2015] FWC 904

FAIR WORK COMMISSION

DECISION

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

Aged & Community Services NSW & ACT
(D2014/67)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 6 FEBRUARY 2015

s.158(1) RO Act application for alteration of eligibility rules.

[1] This decision concerns an application made under s.158(1) of the Fair Work (Registered Organisations) Act 2009 (the RO Act) by Aged & Community Services NSW & ACT (the Applicant) for consent to the alteration of its eligibility rules. The application was lodged with the Fair Work Commission on 27 October 2014.

[2] The application was gazetted in the Commonwealth of Australia Gazette on 29 October 2014. It was published on the Applicant’s website in accordance with Regulation 121. No objection was received within the prescribed time for lodging objections.

[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.

. . .

(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.”

[4] “Eligibility rules” are defined in s.6 “Definitions” of the RO Act as follows:

“eligibility rules, in relation to an organisation or association, means the rules of the organisation or association that relate to the conditions of eligibility for membership or the description of the industry or enterprise (if any) in connection with which the organisation is, or the association is proposed to be, registered.”

[5] The matter was heard on 16 January 2015. The Applicant was represented by Ms I. Halliday, the Chief Executive Officer and Ms M. Sandre.

[6] I was advised that the application arose from its desire to harmonise its rules as registered pursuant to the RO Act and the requirements of the Corporations Act 2001 (Cth). The Applicant became registered under that legislation in November 2013. An earlier application lodged on 14 January 2014 had been withdrawn. The delegate of the General Manager has certified, in mid 2014, new harmonised rules but the eligibility rules remain to be updated.

[7] The Applicant is an employer organisation consisting of not for profit, church and charitable providers of services to vulnerable people. I accept that the changes do not represent an expansion of the coverage of the applicant. There is an updating of language and changes to reflect the taxation requirements for charities but not a broadening of eligibility in practice.

[8] However, given the structure of the current rules and the variation document lodged, it was not easy to discern exactly the variation sought. The Applicant also conceded that aspects of the proposed changes were not “eligibility rules” within the RO Act. Rather, they are administrative rules that need to be checked by the Regulatory Compliance Branch of the Fair Work Commission.

[9] Accordingly, I requested the Applicant to lodge a consolidated copy of the variation with my chambers.

[10] This was done on 19 January 2015.

[11] In summary, the effect of the variation is to:

(a) Delete Rule 1 Name and Industry so that it reads:

“Rule 1 - deleted”

(b) Delete Rule 5 - Membership so that it reads:

“Rule 5 - deleted”

(c) Insert a new Rule 7 - Membership;

(d) Insert a new Rule 9 - Life Members.

The content of Rules 7 and 9 have been left vacant in the current rules so that the proposed new rules can be inserted.

[12] In my view only proposed rules 7.2, 7.3, 7.5 and 9.1 can properly be described as eligibility rules and are subject to approval by me pursuant to s.158. The balance of the proposed Rules 7 and 9 will need to be considered by the Regulatory Compliance Branch of the Fair Work Commission.

[13] Having considered the material submitted, I am satisfied that there has been compliance with the requirements of the RO Act and the Regulations. I am also satisfied that:

1. The change has been made under the rules of the organisation (s.158(2)); and

2. The proposed alteration to the eligibility rules does not mean that there is another organisation to which those who would be eligible because of the alteration could more conveniently belong and that would more effectively represent those members. (s.158(4))

[14] I therefore consent to the changes to the eligibility rules sought by the Association.

[15] The changes will take effect 14 days from the date of this decision. This will give the Regulatory Compliance Branch an opportunity to consider the non-eligibility rules aspects of the proposed Rules 7 and 9. Assuming there is no difficulty with compliance with the RO Act, with these aspects, the new rules will be certified as one package.

DEPUTY PRESIDENT

Appearances:

I. Halliday with M. Sandre for Aged & Community Services NSW & ACT.

Hearing details:

2015

Sydney:

January 16.

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