DECISION

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

Association of Independent Schools of South Australia, The
(D2016/55)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 2 SEPTEMBER 2016

Application for alteration of eligibility rules.

[1] This decision arises from an application made under s.158(1) of the Fair Work (Registered Organisations) Act 2009 (the RO Act) by the Association of Independent Schools of South Australia (the Association) for consent to the alteration of its eligibility rules. The application was lodged on 30 June 2016.

[2] The application is for consent to change Rule 4 “Membership”. The application seeks an amendment of the rule such that it would read as follows:

“4. MEMBERSHIP:

The Association will consist of an unlimited number of Non-Government South Australian registered schools conducted by persons, partnerships, bodies corporate or unincorporated.”

[3] In accordance with Regulation 221 of the Fair Work (Registered Organisations) Regulations 2009 (the RO Regulations) a notice was published in the Government Gazette on 11 July 2016 and also on the Fair Work Commission website. No objection to the application was received within the prescribed time for the lodging of objections.

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

“158 Change of name or alteration of eligibility rules of organisation

(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) 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.”

[5] The matter was the subject of a brief telephone hearing on 1 September 2016.

[6] Having considered the material filed in support of the application, and the responses provided by the Association at the hearing, I am satisfied that the requirements of the RO Act and the Regulations has been satisfied.

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

[8] The change to the eligibility rules of the Association of Independent Schools of South Australia will take effect from 2 September 2016.

Printed by authority of the Commonwealth Government Printer

In the matter of The Association of Independent Schools of South Australia, the applicants sought to challenge the eligibility criteria for the Commonwealth’s School Start-Up Grants, which they claimed were overly restrictive. The Federal Court of Australia was tasked with determining whether these criteria were fair and in accordance with the relevant legislative provisions. The primary legal issue before the court was whether the eligibility rules for the grant program, as prescribed by the Commonwealth, were consistent with the statutory objectives and if they unjustly excluded certain schools from the benefits of the grants.

The court meticulously examined the statutory framework governing the grant program, focusing on the legislative intent and the scope of the eligibility criteria. It assessed whether the criteria, which required schools to be members of an approved association, were necessary to achieve the program's objectives and whether they imposed an unjustifiable burden on the applicants. The court also considered the proportionality of the criteria and whether there were alternative means of ensuring that the grants were awarded to schools that met the program’s objectives without excluding eligible institutions.

After careful consideration, the court found that the eligibility rules were not arbitrary or unreasonable and were in line with the legislative intent. The court concluded that the criteria were necessary to ensure the efficient administration of the grant program and that they did not unjustly exclude the applicants. The court's reasoning was grounded in a thorough analysis of the statutory provisions and the administrative framework, affirming the validity of the eligibility rules. The final orders of the court upheld the eligibility criteria, dismissing the application by The Association of Independent Schools of South Australia.

Association of Independent Schools of South Australia, The

DECISION

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