Australian Business Industrial
[2009] FWA 232
•16 SEPTEMBER 2009
[2009] FWA 232 |
|
DECISION |
Workplace Relations Act 1996
s.18(a) RAO Schedule - Application for registration by an association of employers
(D2008/124)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 16 SEPTEMBER 2009 |
Application for Registration as an Organisation by a Transitionally Recognised Association - leave to alter rules - Fair Work (Registered Organisations) Act 2009 - Fair Work (Registered Organisations) Regulations 2009.
BACKGROUND
[1] Australian Business Industrial (“ABI”) filed an application on 22 December 2008for registration as an organisation under s. 18 of Schedule 1 – Registration and Accountability of Organisations (“the RAO Schedule”) of the Workplace Relations Act 1996 (CTH) (“the WR Act”). ABI is a transitionally recognised association and an organisation of employers registered under the Industrial Relations Act 1996 (NSW).
[2] Item 621 of Part 9 of Schedule 22 of the Fair Work (Transitional and Consequential Amendments) Act 2009 makes provision for Fair Work Australia (“FWA”) to hear the above application. The RAO Schedule as described above is now preserved by way of the Fair Work (Registered Organisations) Act 2009 (“the RO Act”).
[3] Notice of ABI’s application was published in the Commonwealth of Australia Gazette on 14 January 2009. After the notice was published in the Gazette objections to the registration of ABI were lodged in compliance with the regulations by:
- The Australian Industry Group (“AIG”) on 13 February 2009;
- The Victorian Automobile Chamber of Commerce (“VACC”) on 16 February 2009;
- The Master Plumbers’ and Mechanical Services Association of Australia (“MPMSAA”) on 18 February 2009; and
- The Motor Traders’ Association of New South Wales (“MTA”) on 18 February 2009.
[4] ABI filed Answers to the Objections that were lodged by AIG, VACC, MTA and MPMSAA.
[5] A directions hearing was held on 5 March 2009. The matter was re-listed for further directions, by telephone on 19 March 2009. Prior to the directions hearing on 19 March 2009 ABI requested the date to be vacated to 2 April 2009 to allow ABI to discuss resolution of the objections by AIG, VACC, MPMSAA and MTA. This date was also vacated at the request of ABI to allow for further discussions to take place between the parties. On 20 May 2009 a directions hearing by telephone was conducted. The matter was listed for hearing and written directions were issued to the parties on the same date.
[6] On 30 June 2009 ABI filed an outline of submissions together with a statement of Mr Colin Bosworth, Secretary/Treasurer, ABI.
[7] On 14 July 2009 ABI filed an application for leave to alter its rules pursuant to s. 25 of the RO Act. ABI sought to amend rule 6 of the rules of the association.
[8] On 31 July 2009 ABI filed a signed Memorandum of Agreement which outlined the settlement reached between ABI and MPMSAA. The signed Memorandum of Agreement that ABI and MPMSAA entered into remains on the file. Consequently, MPMSAA did not maintain an interest in these proceedings. The Memorandum of Agreement between ABI and MPMSAA reads as follows:
“Purpose
The purpose of this agreement is to reflect the basis of the settlement of the objection by MPMSAA in the matter of the application by ABI for registration as an organisation of employers under the Workplace Relations Act 1996 (or under any successor legislation).
Recitals
…
3 – Both parties recognise that at least some employers which fall within MPMSAA’s eligibility rule also fall within ABI’s eligibility rule and that there may be employers of this kind which are members of either or both MPMSAA and ABI.
Agreement
The parties agree to the following:
…
5 – ABI undertake that it will not actively recruit as an ordinary member of it, any employer that is eligible for membership of MPMSAA. To “actively recruit” means to engage in recruiting which is directed towards employers of the kind referred to in paragraph 3 above. Promotion of events to employers, whose commercial activities fall within MPMSAA’s eligibility rule, as part of a general promotion to employers in a region or place, does not constitute active recruiting.
6 – In consideration of ABI’s undertaking at paragraph 5 above, MPMSAA withdraws its objection to the subject application.
7 – The ABI tenders a copy of this agreement to the Australian Industrial Relations Commission (the Commission) to be placed on the official file of the Commission relating to the subject application.
8 – That this agreement will be relevant as between the Parties in any representation rights and/or eligibility matters arising under the Act or under any successor legislation.”
[9] On 11 August 2009 ABI filed a signed Memorandum of Understanding which outlined the settlement reached between ABI and MTA. The signed Memorandum of Understanding that ABI and MPMSAA entered into remains on the file. The Memorandum of Understanding between ABI and MPMSAA reads as follows:
“3. The MTA has lodged objections to the registration of ABI in matter number D2008/124.
4. It is recognised by both parties that at least some employers that fall within the MTA’s eligibility rule also fall within ABI’s eligbility rule.
5. The parties agreed that ABI has a number of employers as members that fall within MTA’s eligibility rule. They also recognised that there may be employers that are members of both MTA and ABI.
6. Until otherwise agreed between the parties, ABI undertakes not to recruit members from the industry coverage of MTA whose application/s for membership arise out of a campaign by the NSW Business Chamber to actively recruit from industry coverage of MTA. To “actively recruit” means to engage in recruiting which is directed towards employers of the kind prescribed within MTA’s eligibility rule. Promotion of events to employers, whose commercial activities fall within MTA’s eligibility rule, as part of a general promotion to employers in a region or place, does not constitute active recruiting.
7. MTA agrees to withdraw its objections to the application by ABI for registration as an organisation under the WR Act.”
[10] On 11 August 2009 VACC filed an outline of submissions in support of its objection. On the 11 August 2009 AIG filed an outline of submissions in support of its objection together with a statement of Mr Mark Goodsell, Director New South Wales, AIG. On 25 August 2009 ABI filed a reply to the submissions filed by AIG together with a supplementary statement of Mr Colin Bosworth.
[11] Immediately prior to the hearing of the application on 7 September 2009, I was informed that ABI and the remaining objectors, AIG and VACC, had reached a settlement.
[12] During the hearing ABI tendered the following undertaking:
“Australian Business Industrial undertakes to amend rule 6 of its rules in accordance with the proposed resolution a copy of which is attached [see paragraph 18 below] and confirms that it considers the effect of that eligibility rule is that if Australian Business Industrial is registered as an organisation under the Fair Work (Registered Organisations) Act 2009 its rights to represent members arising from such registration will extend so far as matters that are under:
• the Fair Work Act 2009 or
• the Fair Work Act (Registered Organisations) Act 2009 or
• the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or
• any regulation or rule made under any of those three acts or
• any act, regulation or rule which may replace such instruments listed above either wholly or in part,
are concerned only to matters that are located in the State of New South Wales including matters that may be located both in New South Wales and one or more other states.” 1
[13] ABI also tendered an unsigned Memorandum of Understanding between ABI and VACC which includes the following:
“[3] The VACC has lodged objections to the registration of ABI in matter D2008/124.
[4] It is recognised by both parties that at least some employers that fall within the VACC eligibility rule also fall within ABIs eligibility rule.
[5] The parties agree that ABI has a number of employers as members that fall within VACCs eligibility rules. They also recognise that there may be employers that are members of both VACC and ABI.
[6] Australian Business Industrial undertakes to amend rule 6 of its rules in accordance with the proposed amendment filed in the proceeding and confirms that it considers the effect of the proposed eligibility rule is that if Australian Business Industrial is registered as an organisation under the Fair Work (Registered Organisations) Act 2009 its right to represent members arising from such registration will extend, so far as matters that are under: the Fair Work Act 2009 or the Fair Work (Registered Organisations) Act 2009 or, the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or, any regulation or rule made under any of those three Acts or, any act regulation or rule which may replace such instruments listed above either wholly or in part, are concerned, only to matters that are located in the State of New South Wales including matters that may be located both in New South Wales and one or more other states.
[7] VACC agrees to withdraw its objection to the application by ABI for registration as an organisation under the WR Act.” 2
[14] Mr Harris, Industrial Relations Advisor, VACC stated during the hearing that “on the basis that the Memorandum of Understanding being duly signed” 3VACC agreed to withdraw its objection to ABI’s application.
[15] Mr Hatton, Deputy CEO, Policy & Employment relations, MTA during the hearing formally withdrew MTA’s objection to ABI’s application following the Memorandum of Understanding with ABI that was filed on 11 August 2009.
[16] Notwithstanding that at the commencement of the hearing of the application for registration on 7 September 2009 there were no objectors to the application, it is still necessary for the application to meet the statutory pre-conditions for registration. Moreover, the withdrawal of AIG and VACC objections to the registration of ABI was conditional upon ABI conforming with the undertakings ABI had given to AIG and VACC to amend rule 6 of its rules. Accordingly, it is necessary for me to consider whether leave should granted leave to amend its rules in the manner sought.
APPLICATION TO ALTER RULES UNDER SECTION 25 OF THE RO ACT
[17] On 14 July 2009 ABI filed an application for leave to amend its rules pursuant to s. 25 of the RO Act. Pursuant to Regulation 27 of the Fair Work (Registered Organisations) Regulations 2009 (“RO Regulations”)the application was in the form set out in the Procedural Rules. ABI seeks leave to make an amendment to rule 6 of its rules. Rule 6 is the eligibility rule of ABI.
[18] ABI proposed rule 6 to be amended by deleting the full stop at the conclusion of that rule and inserting at the foot of the text of that rule the following words: “PROVIDED THAT ABI shall be eligible to represent members only in the State of New South Wales.” ABI stated that rule 6 would read as follows:
“6 ABI shall consist of persons, as defined in rule 1 who:
(a) Are employers engaged in New South Wales in or in connection with manufacturing and other producing industries and trade and commerce; and
(b) Are members of the incorporated company presently known as NSW Business Chamber (ABN 63 000 014 504);
PROVIDED THAT ABI shall be eligible to represent Members only within the State of New South Wales.” 4
[19] Section 25 of the RO Act provides:
“25 Applicant for registration may change its name or alter its rules
(1) FWA 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 FWA 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 FWA; 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)
(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 other rules of the association; and
(b) subject to any further alterations lawfully made.”
[20] The objections filed by AIG and VACC were withdrawn prior to the hearing on the basis that ABI will amend its eligibility rule, rule 6, to limit ABI’s coverage to the agreed terms set out in paragraph [18] above. At the hearing Mr Nolan submitted the proposed change to rule 6, the eligibility rule, is required in order to comply with the requirements of s. 19(1) of the RO Act and Regulation 1.13 of Part 3 of Schedule 1 of the RO Regulations.
[21] The Full Bench held in Australian Rail, Tram and Bus Industry Union [2008] AIRCFB 362 that s. (19)(1) of Schedule 1 of the WR Act, which remains authoritative under FWA Act, requires the registration of the “the association.” Accordingly, “by necessary implication the conditions of eligibility of the applicant must be the same before and after registration. Otherwise, the Commission would not be registering the applicant association, but some entity other than the applicant.” 5ABI have sought to amend rule 6 by inserting a geographic limitation into the eligibility rule. The amendment is to satisfy Regulation 1.13 of Part 3 of Schedule 1 of the RO Regulations to ensure ABI’s rules state the association is eligible to represent members only within New South Wales, the state in which it had been registered as a State-registered association immediately before its registration as a transitionally recognised association. As this is a matter that extends to whether the proposed rules of ABI comply with s.19(1) of the RO Act and Schedule 1 of the RO Regulations it is relevant to the basis for the grant of leave under s. 25(1)(a) of the RO Act. I note the absence of a geographic limitation in the eligibility rule was raised as an objection by AIG.
[22] On this basis I am satisfied that ABI’s application for leave to alter its rules is made in accordance with s. 25(1) of the RO Act and the requirements of the section are satisfied. I therefore grant leave under s. 25(1) of the RO Act to ABI to amend rule 6 in the manner sought conditional upon ABI complying with Regulation 28 of the RO Regulations. Regulation 28 of the RO Regulations provides:
“28 Alteration of rules — lodgement of copies (s 25)
An association that has altered its rules in accordance with leave granted by FWA under subsection 25 (1) of the Act must:
(a) within 35 days after altering its rules, lodge with FWA:
(i) 2 copies of the alterations; and
(ii) a declaration, signed by an officer of the association authorised to sign the declaration, verifying the alterations; and
(b) within 7 days after lodging the copies of the alterations with FWA, serve a copy of the alterations on any objector who has lodged a notice of objection under regulation 23.
COMPLIANCE WITH SECTION 19 OF THE RO ACT
[23] The criteria for the registration of associations are contained in s.19 of the RO Act. The section provides that FWA must only grant the application if the criteria set out in s. 19(1) of the RO Act are satisfied.
[24] Section 19(1) of the RO Act reads as follows:
“19 Criteria for registration of associations other than enterprise associations
(1) FWA 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) he 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) FWA 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 FWA accepts an undertaking from the association that FWA 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 FWA may take into account in considering, under subparagraph (1)(j)(ii), the effectiveness of the representation of an organisation or association, FWA 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), FWA 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) FWA 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.”
[25] Part 3 of Schedule 1 of the RO Regulations explains how s.19 of the RO Act applies to a transitionally recognised association. Part 3 reads as follows:
“Part 3 Modification of the Act for transitionally recognised associations
1.11 Application of Part
For clause 7 of Schedule 1 to the Act, this Part explains how section 19 of the Act applies to a transitionally recognised association.
1.12 Provisions not to apply
The following provisions of section 19 of the Act are taken not to apply to the association:
(a) paragraph 19 (1) (j);
(b) paragraph 19 (2);
(c) paragraph 19 (3).
1.13 Other criteria for recognition of transitionally recognised association – coverage rules
Section 19 (other than the provisions mentioned in clause 1.12) of the Act applies to the association as if the section required FWA to refuse to grant an application for recognition made by the association, unless the rules of the association state that the association is eligible to represent members only within the State in which it had been registered as a State-registered association immediately before its recognition as a transitionally recognised association.
Note State-registered association has the meaning given by subitem 1 (1) of Schedule 1 to the Act.
1.14 Change of rules not to prevent recognition
Section 19 (other than the provisions mentioned in clause 1.12) of the Act applies to the association as if the section provided that FWA is not prevented from granting an application for recognition made by a transitionally recognised association only because the association amended its rules after its recognition as a transitionally recognised association.”
[26] To establish that the criteria for registration of an association set out in s. 19(1) of the RO Act have been met Mr Nolan relied on the witness statements of Mr Colin Bosworth dated 30 June 2009 and 25 August 2009 and the other relevant documents lodged including the supporting documents filed when the application was lodged on 22 December 2008.
Section 19(1)(a)(i) and (ii) of the RO Act
[27] Pursuant to s. 19(1)(a)(i) of the RO Act ABI must be a genuine association that is a federally registrable association of employers under s. 18 of the RO Act. Firstly, ABI is not a federally registrable employer association pursuant to s. 18A(1)(a) of the RO Act as ABI is not a constitutional corporation as defined by s. 6 of the RO Act. However, ABI is a federally registrable employer association pursuant to s. 18A(1)(b) of the RO Act as some or all of its members are federal system employers, which is defined as a national system employer in s.14 of the FWA Act. There are no issues in regard to s. 18A(3) and (4) of the RO Act. I am satisfied that ABI is a federally registrable association of employers.
[28] Pursuant to s. 19(1)(a)(ii) of the RO Act ABI must be an association for furthering or protecting the interests its members. The purposes of ABI which are set out in rule 3 of the rules of ABI indicate ABI is an association for further or protecting the interests of its members. 6 Mr Bosworth stated in his witness statement that ABI has a long and successful industrial relations history representing its members in the NSW and Federal industrial relations systems. ABI gave evidence where they have furthered or protected their interests of their members in a broad range of areas which include, but are not limited to: state wage cases, industrial disputes, unfair dismissal cases, agreement and award making processes.7 ABI stated they have the “resources, corporate knowledge, capacity and expertise to continue to represent its members.” 8There are no materials before me to suggest otherwise.
[29] Accordingly, I find that ABI is a genuine association that is federally registrable which is capable of furthering or protecting the interests of its members seeking registration for the purposes of s. 19(1)(a) of the RO Act.
Section 19(1)(b) of the RO Act
[30] The requirement of this section has no application as ABI is an association of employers.
Section 19(1)(c) of the RO Act
[31] ABI provided a list of the members of ABI when they lodged their application for registration on 22 December 2008. I am satisfied that this material demonstrates that throughout the 6 months before their application, members of ABI have employed on an average taken per month at least 50 employees.
Section 19(1)(d) of the RO Act
[32] The requirement of this section has no application as ABI is an association of employers.
Section 19(1)(e) of the RO Act
[33] Section 5(1) of the RO Act sets out Parliament’s intention in enacting the RO Act. Rule 3 of the rules of ABI states “the purposes for which ABI is established are to advance the cause and represent the interests of its members” 9 and lists twenty three purposes. An examination of the purposes set out in rule 3 indicates that its objects are in conformity with the RO Act’s requirements. Further, Mr Bosworth in his witness statement stated that, “ABI has the resources, corporate knowledge, capacity and expertise to continue to represent its members, in both the New South Wales industrial relations system and the industrial relations system under the Fair Work Act 2009 (Cth).”10I am satisfied the association would conduct its affairs in a way that meets its obligations under the RO Act and FWA Act.
[34] Section 19(4) of the RO Act requires that in applying s. 19(1)(e) of the RO Act, “FWA 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.” There is no evidence in the materials before me of any recent conduct by ABI of the kind that is relevant for purposes of s. 19(4) of the RO Act.
Section 19(1)(f) of the RO Act
[35] Section 19(1)(f) of the RO Act requires that the rules of ABI make provisions as required by the RO Act to be made by the rules of organisations. I have indicated above that I will grant leave to ABI under s. 25(1) of the RO Act to amend its rules.
[36] My decision above that I will grant leave to ABI under s. 25(1) of the RO Act will continue to stand and give effect to s.19(1)(f) of the RO Act once ABI’s rules have been amended under the Industrial Relations Act 1996 (NSW). The rules that I must be satisfied make provision as required in RO Act for the purposes of s. 19(1)(f) of the RO Act are the rules of ABI after the rules have been amended under the Industrial Relations Act 1996 (NSW). Once rule 6 has been amended, the rules of ABI will make provision as required by this section.
Section 19(1)(g) of the RO Act
[37] I note the submissions lodged by AIG as an objector on 11 August 2009, prior to reaching an agreement with ABI, indicated the name of Australian Business Industrial is so similar to the name of Australian Industry Group as to be likely to cause confusion. Although this is no longer a substantive claim by AIG I must still make a finding on this issue. Although the word Australian is identical in both ABI and AIG, it is my view, that name Australian Business Industrial is not so similar to the name of Australian Industry Group, as to be likely to cause confusion. Accordingly, no issues arise in this regard.
Section 19(1)(h) of the RO Act
[38] The rules of ABI state there shall be an ABI council which shall be the committee of management and shall comprise fifteen (15) eligible members of ABI elected. 11 The material before me indicates that the ABI council is a committee of management as defined by s. 6 of the RO Act. The minutes of the ABI council meeting held on 3 December 2008 indicate that the council’s resolution to obtain full federal registration as an organisation of employers under the Act was passed by an absolute majority of the committee of management of ABI under and in accordance with the rules of ABI.12
Section 19(1)(i) of the RO Act
[39] Section 19(1)(i) of the RO Act requires a finding that the registration of the association would further Parliament’s intention in enacting this Act as contained in s. 5 and the objects set out in s. 3 of the FWA Act.
[40] In my view the registration of ABI would further Parliament’s intention in enacting the RO Act and the FWA Act.
Section 19(1)(j), 19(2) and 19(3) of the RO Act
[41] I note that as a transitionally recognised organisation ABI is exempt from the ordinary requirements of s. 19(1)(j), 19(2) and 19(3) of the RO Act because of the operation of Regulation 1.12 of Part 3 of Schedule 1 of the RO Regulations.
COMPLIANCE WITH THE RO REGULATIONS
[42] An application for registration must comply with Regulations 21 and 22 of the RO Regulations.
[43] Regulation 21(1)(a) of the RO Regulations was satisfied as the application was made on Form R69, an appropriate form as set out in the rules of the Commission.
[44] Regulation 21(1)(b) of the RO Regulations was satisfied as the application contained a declaration by Mr Colin Bosworth, Secretary/Treasurer of ABI, which verified the facts stated in the application and any documents lodged with the application. Resolution four (4) was passed unanimously at the council meeting on 3 December 2008 which authorised the Secretary/Treasurer, Mr Bosworth, to conduct the ABI’s application for registration as an organisation under the Act. 13 Therefore, I am satisfied that Mr Bosworth was authorised to make the declaration.
[45] Regulation 21(c) was met as the application was lodged with the Registry on 22 December 2008.
[46] Regulation 21(1)(d) requires an application made by an association seeking registration as an organisation to:
“(d) be lodged with the following documents:
(i) a list of the members of the association, showing the name and postal address of each member;
(ii) a list of the offices in the association and in each branch of the association;
(iii) a list of the names, postal addresses and occupations of the persons holding the offices;
(iv) a list of the branches of the association, showing for each branch its name and the location of its office;
(v) the rules of the association and the rules of each of its branches;
(vi) a copy of a resolution in favour of the registration of the association as an organisation passed in accordance with the rules of the association by a majority of the members of the association present at a general meeting of the association or by an absolute majority of the committee of management of the association.”
[47] Supporting document B of ABI’s application contained a list of the members of the association as is required by Regulation 21(1)(d)(i) of the RO Regulations.
[48] Supporting document C of the application serves to meet the requirements of Regulation 21(1)(d)(ii) of the RO Regulations, in that it cites the offices in the association.
[49] Supporting document D of the application specifies the details, in relation to the names, addresses and occupations of the persons holding offices, as required by Regulation 21(1)(d)(iii) of the RO Regulations.
[50] No material was submitted in respect of Regulation 21(1)(d)(iv) of the RO Regulations as this is not applicable to the applicant association.
[51] ABI attached, by way of supporting document E of the application, a certified copy of the rules, passed by the members, as they were at the time of the application in support of Regulation 21(1)(d)(v) of the RO Regulations.
[52] Supporting document F of the Application was provided in support of Regulation 21(1)(d)(vi) of the RO Regulations.
[53] Regulation 22 of the RO Regulations requires that after receiving an application for registration, the General Manager of FWA must:“[…] publish a notice in the Gazette stating that an application for registration has been received.” Regulation 22 has been met as my examination of the materials indicates the application was published in the Commonwealth of Australia Gazette, No. GN1, on 14 January 2009.
CONCLUSION
[54] It is not contested by any objector that the criteria in s. 19(1) of the RO Act has not been satisfied. I am satisfied that each of the criteria for registration is satisfied. Prior to formally granting the application for registration of ABI I will need to be satisfied that the amendments to the rules subject to the application for leave under s. 25 of the RO Act have been made by ABI and approved by the New South Wales Industrial Registrar. I intend to grant the application subject to receiving evidence of the rule changes. I note the leave granted under s. 25(1) of the RO Act to ABI to amend rule 6 of their rules was conditional upon ABI complying with Regulation 28 of the RO Regulations.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr J Nolan of Counsel for ABI
Mr R Baragry for AIG
Mr P Harris for VACC
Mr G Hatton for MTA
Hearing details:
2009
7 September
SYDNEY
1 Exhibit ABI 1.
2 Exhibit ABI 2.
3 Transcript PN20.
4 See exhibit ABI 1 and annexure “K” of the witness statement of Mr Colin Bosworth dated 30 June 2009.
5 Australian Rail, Tram and Bus Industry Union [2008] AIRCFB 362, PR981572 at paragraph 27.
6 See rule 3 of the rules of ABI. Annexure “G” of the witness statement of Mr Colin Bosworth dated 30 June 2009.
7 Witness statement of Mr Colin Bosworth dated 30 June 2009, paragraphs 15 - 16.
8 Witness statement of Mr Colin Bosworth dated 30 June 2009, paragraph 17.
9 See rule 3 of the rules of ABI. Annexure “G” of the witness statement of Mr Colin Bosworth dated 30 June 2009.
10 Witness statement of Mr Colin Bosworth dated 30 June 2009, paragraph 17.
11 See rule 26 of the rules of ABI. Annexure “G” of the witness statement of Mr Colin Bosworth dated 30 June 2009.
12 Annexure “B” - “F” of the witness statement of Mr Colin Bosworth dated 30 June 2009.
13 Annexure “F” of the witness statement of Mr Colin Bosworth dated 30 June 2009.
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