Australian Community Services Employers Association, Queensland Union of Employers
[2009] FWA 521
•7 OCTOBER 2009
[2009] FWA 521 |
|
DECISION |
Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act - Application for alteration of eligibility rules
s.158(1) RO Act - Application for change of name of organisation
(D2009/10001 and D2009/10002)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 7 OCTOBER 2009 |
Summary - application for consent to alter eligibility rule and application to consent to change name of organisation.
[1] This decision concerns two applications (in D2009/10001 and D2009/10002) made under s.158(1) of the Fair Work (Registered Organisation) Act 2009 (“the FWRO Act”) by the Australian Community Services Employers Association , Queensland Union of Employers (“the Association”) for consent, firstly, to change its eligibility rules and secondly, to change the name of the Association. Both applications were lodged on 30 July 2009, and came before me for consideration on 30 September 2009.
[2] The first application seeks the consent of Fair Work Australia (“FWA”) to the alteration of the Association's eligibility rule. The current eligibility rule at Sub Rule 6 of the Association's rules reads relevantly as follows:
“6. (1)
(a) A person, (which shall include an incorporated entity or unincorporated association) shall be eligible to become an Ordinary Member of the Association if the person is an employer or person (other than an employee) who carries on business in or in connection with the provision of community services in the State of Queensland.
(2) ‘Community Services’ shall mean Care and Education Services for children and families and other members of the Community for example Kindergartens, Pre-Schools, Child Care Centres (with the exclusion of private long day care centres), Family Day Care, Outside School Hours Care, Neighbour Centres, Parents and Citizens/Friends Organisations and Community Centres.
Associated Members
“(5) Membership as an Associate Member shall be open to any person other than an Ordinary Member who has a genuine and demonstrated interest in the objects and purposes of the Association and shall include but not be limited to the following categories:
(a) persons engaged in academic studies or other professional activities relating to community services:
(b) persons interested in the promotion or the proper conduct of community services;
(c) persons engaged in the establishment of a community service which has not yet been established.
(6) The Board may establish such categories of Associate Members as it may consider appropriate and may, in its absolute discretion, determine the rights, privileges and liabilities of each category.”
[3] The alteration as sought has the effect of excluding the words “in the State of Queensland” in sub rule 6(1)(a) and substituting the words “throughout the Commonwealth of Australia”.
[4] By so altering the eligibility rule, the Association's geographic coverage of the Association is extended.
[5] The change of name of the Association as sought is consequent of the above alteration to the Association's eligibility rule. The change of name of the Association approved by the Association (see below) excludes the words “Queensland Union of Employers” and substitutes the words “Union of Employers”.
[6] While both applications before me were gazetted on 19 August 2009 1, no objection was received in relation to either application within the stipulated period within which objections in writing must be received, which is 35 days.
[7] Fair Work Australia is also given the discretion to refuse to consent to an alteration for a number of reasons. 2 But no issues arise that would give me cause to not consent to the two applications before me.
[8] The alteration to the eligibility rule of the Association and the name change were consented to within the context of the Rules of the Association.
[9] In the declarations by the President of the Association that accompanied the two applications, the Association declared that the written notice was provided to all members of the Association 26 days prior to the annual general meeting on 1 May 2009 (following a resolution of the Board of the Association) of the intention to alter the Rules of the Association and change the Name of the Association.
[10] In accordance with Rule 46 of the Association's Rules, the Association sought a special resolution under Rule 39 for these ends, and provided written notice of the same, along with the contents of the resolutions.
[11] More than three quarters of the ordinary and associate members of the organisation at the subsequent annual general meeting being entitled to vote, cast a vote both in person and by proxy in favour of the special resolution.
[12] This declared process as it was in respect of both applications, therefore satisfies the requirement of s.158(2) of the Act, which reads:
“FWA may consent to a change or alteration in whole or part, but must not consent unless FWA is satisfied that the change or alteration has been made under the rules of the organisation.”
[13] Section 158(4) of the Act reads:
“FWA 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 FWA, another organisation:
(a) to which those persons could more conveniently belong; and
(b) that would more effectively represent those members.”
[14] No issue arises in this regard because no objection in writing was received as a consequence of the gazettal of the application (as mentioned above).
[15] Section 158(7) of the FWRO Act reads:
“FWA may also refuse to consent to an alteration of the eligibility rules of an organisation if it:
(a) is satisfied that the alteration would change the effect of any order made by FWA under section 133 about the right of the organisation to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of employees; and
(b) considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.”
[16] Despite s.158(7)(b) of the FWRO Act, s.158(7)(a) of the FWRO Act operates in respect of employees and as such s.158(7)(b) is not relevant to my consideration. There is no material before me that attracts my consideration in relation to s.158(4), s.158(5) or s.158(6) of the FWRO Act.
[17] There are no other grounds for purposes of the wider discretion invested in FWA at s.158(8) of the FWRO Act that would cause me to not approve the alteration of the Association's eligibility rule on the terms as sought.
[18] Section 158(3) of the FWRO Act reads:
“FWA must not consent to a change in the name of an organisation unless FWA 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.”
[19] There is no organisation the name of which is similar to that of the Association. Nor is there any organization that has indicated within the gazettal period that the Association's name is so similar to its that it is likely to cause confusion.
CONCLUSION
[20] On the basis of the above considerations, I must consent to the alteration to the Association’s eligibility rule as set out above, and approve, further, the change to the name of the Association, as also set out above.
[21] Section 158(9) of the Act reads as follows:
“Where FWA consents, under subsection (1), to a change or alteration, the change or alteration takes effect on:
(a) where a date is specified in the consent—that date; or
(b) in any other case—the day of the consent.”
[22] My consent to the applications in D2009/10001 and D2009/10002 will take place with effect from Wednesday, 14 October 2009.
SENIOR DEPUTY PRESIDENT
1 Both applications appeared in Gazette No. GN 32, 19 August 2009
2 Section 158(6)-(8) of the FWRO Act
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