Association of Independent Schools of South Australia

[2014] FWC 3299

[2014] FWC 3299

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.18(a) RO Act - Application for registration by an association of employers

Association of Independent Schools of South Australia
(D2014/53)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 19 MAY 2014

Application for registration by an association of employers.

[1] On 4 February 2014 an application was lodged in the Fair Work Commission (the Commission) to register The Association of Independent Schools of South Australia (the Applicant) as an organisation pursuant to s.18(a) of the Fair Work (Registered Organisations) Act 2009 (the RO Act).

[2] The application was notified by publication in the Commonwealth Gazette on 17 February 2014 advising that any notice of objection should be filed within 35 days of the date of publication. No objections to the application were filed.

Relevant Provisions of the RO Act

[3] Section 18A 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.”

[4] I need to be satisfied that the criteria for registration contained in s.19 have been met and, if so, I must grant the application.

“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.”

[5] Finally, s.25 gives authority to the Commission to approve an amendment to the rules of an applicant organisation to comply with the requirements of the Commission, the Act and/or to settle an objection.

“25 Applicant for registration may change its name or alter its rules

(1) The FWC may, on the application of an association applying to be registered as an organisation, grant leave to the association, on such terms and conditions as the FWC considers appropriate, to change its name or to alter its rules:

(a) to enable it to comply with this Act; or

(b) to remove a ground of objection taken by an objector under the regulations or by the FWC; or

(c) to correct a formal error in its rules (for example, to remove an ambiguity, to correct spelling or grammar, or to correct an incorrect reference to an organisation or person).

Note: Paragraph (a)—in order for an organisation to comply with this Act, its rules must not be contrary to the Fair Work Act (see paragraph 142(1)(a) of this Act).

(2) An association granted leave under subsection (1) may change its name, or alter its rules, even though the application for registration is pending.

(3) Rules of an association as altered in accordance with leave granted under subsection (1) are binding on the members of the association:

(a) in spite of anything in the other rules of the association; and

(b) subject to any further alterations lawfully made.”

Coverage of the Applicant

[6] The proposed “Conditions of Eligibility” of the Applicant are as follows:

“4. MEMBERSHIP

The Association will consist of an unlimited number of Non-Government schools conducted by persons partnerships, bodies corporate or unincorporated that are engaged in or in connection with Non-Government Education in South Australia.”

Compliance with the RO Act

[7] The report of the Regulatory Compliance Branch of the Commission indicated that the rules as lodged complied in all respects with the requirements of the RO Act.

[8] The Applicant lodged a written submission which set out the basis upon which it complies with s.18A(1) and s.19 of the RO Act. This was supplemented by Mr Dowd at the hearing on 2 May 2014. The Applicant was formed in the early 1970’s and operated since that time within the South Australian industrial system. It is currently a transitionally registered organisation under the RO Act.

[9] I am satisfied that the Applicant is a federally registrable association of employers within s.18A(1) of the RO Act which is quoted above. The evidence was that all of its members are federal system employers. Many are constitutional corporations, as Mr Dowd outlined. In any event, they are all covered by the South Australian Government’s referral of its industrial powers to the Commonwealth pursuant to legislation passed in 2009.

[10] I am satisfied also that the Applicant has met the criteria for registration provided for in s.19 including:

● It is a genuine and independent association of employers as required by sub sections (1)(a) and (b).

● Its members have the number of employees required by subsection (1)(c).

● The rules, as amended, comply with the requirements of the RO Act.

● The Applicant’s name does not infringe on the provisions of sub-section (1)(g).

● The Applicant’s members have endorsed the registration of the Applicant in accordance with its rules as required by sub-section (1)(h).

● There being no objectors, there is no organisation to which the members of the Applicant could more conveniently belong and which would more effectively represent them as specified by sub-section (1)(j).

Conclusion

[1] In summary, I am satisfied that the application complies with s.18, s.18A and s.19 of the RO Act.

[2] I therefore grant the application for registration of “The Association of Independent Schools of South Australia” as an association of employers.

[3] The operative date of this decision and the date of registration of the Applicant shall be seven days after the date of this decision, that being 26 May 2014.

DEPUTY PRESIDENT

Appearances:

S. Dowd for The Association of Independent Schools of South Australia.

Hearing details:

2014

Sydney (with video link to Adelaide):

May 2.

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