Australian Hotels Association

[2017] FWC 2121

[2017] FWC 2121

FAIR WORK COMMISSION

DECISION

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

Australian Hotels Association
(D2016/56)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 13 APRIL 2017

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 the Australian Hotels Association (AHA) for consent to the alteration to its eligibility rules

[2] The application was signed by the AHA Senior Vice President Scott Leach on 26 July 2016 and lodged on 27 July 2016.

[3] The application was accompanied by a Statutory Declaration by Mr Colin Waller, the AHA’s Secretary Treasurer, to the effect that the alteration was endorsed by the AHA’s National Board on 27 June 2016. He declared that the rules of the AHA had been otherwise complied with.

[4] The rule change makes numerous amendments to Rule 5 Eligibility for Membership. The change sought is therefore: to delete the contents of Rule 5 and insert in lieu the following:

“5 - ELIGIBILITY FOR MEMBERSHIP

(1) Any person, partnership or corporation who employs or usually employs labour in any State or Territory of the Commonwealth of Australia shall be eligible for membership of the Association provided that the labour is employed in establishments in respect of which any of the following licences have been granted:

(a) A publican's victuallers, public house, hotel, tavern, bar or general licence issued under the Licensing Legislation; or

(b) In the State of South Australia any licence which has been granted pursuant to the Licensing Legislation; or

(c) In the State of New South Wales any licence, other than a club licence, issued under the Licensing Legislation; or

(ca) In the Australian Capital Territory any licence, other than a club licence, issued under the Licensing Legislation; or

(d) In the State of Victoria any licence, other than a club licence, issued under the Licensing Legislation; or

(e) In the State of Queensland any licence, other than a club licence, which has been granted pursuant to the Licensing Legislation; or

(f) In the State of Western Australia any licence issued under the Licensing Legislation; or

(g) In the Northern Territory any licence issued under the Licensing Legislation; or

(h) In any other Territory of the Commonwealth of Australia, any licence, other than a club licence, issued under the Licensing Legislation.

(1A) Where a partnership applies for membership each member of that partnership shall apply.

(2) Any person, partnership or corporation who or which employs or usually employs labour in the State of Tasmania shall be eligible for membership of the Association provided that:

(i) the labour is employed in an establishment in respect of which a licence, other than a club licence, has been issued under the Licensing Legislation; or
(ii) the employer is engaged in the hospitality industry in that State including (without limitation) any employer that carries on a catering business or operates an accommodation hotel, or a motel, or a restaurant, or a café.

(3) Without limiting the effect of any of the preceding provisions of this Rule, and without being limited by any such provisions, every person, partnership or corporation who or which employs or usually employs labour in any State or Territory of the Commonwealth of Australia shall be eligible for membership of the Association provided that the employer is engaged in the hospitality industry carrying on a business that provides accommodation including (without limitation):

(i) An accommodation hotel; or
(ii) A guest house; or
(iii) A motel; or
(iv) Serviced apartments.”

[5] The effect of the alteration is to:

(a) Broaden eligibility for membership to employers of labour in establishments located in any State and Territory but licensed pursuant to Commonwealth legislation; and

(b) Incorporate additional descriptions of different types of licensed premises; and

(c) Remove references to various State and Territory legislation and replace with a defined term; and

(d) Broaden eligibility for membership to employers of labour in establishments licensed under any type of licence, other than a club licence, in any other Territory of the Commonwealth of Australia; and

(e) Broaden eligibility for membership to employers of labour engaged in the hospitality industry and carrying on a business that provides accommodation in any State or Territory of the Commonwealth of Australia.

[6] Further, the new Rule 5 will:

(a) provide eligibility for membership to employers of labour in establishments licensed pursuant to any law of a State or territory of the Commonwealth of Australia or any law of the Commonwealth of Australia; and

(b) Clarify that the types of licensed premises in respect to which membership may be granted, pursuant to sub-rule 5(1)(a) include a ‘tavern.’ ‘bar’ or ‘general licence;’ and

(c) In addition to the Australian Capital Territory, New South Wales, the Northern Territory, Queensland, South Australia, Tasmania, Victoria and Western Australia, provide eligibility for membership to employers of labour in licensed establishments located in any other Territory of the Commonwealth of Australia; and

(d) In addition to New South Wales and Tasmania, provide eligibility for membership to employers of labour operating unlicensed accommodation establishments in any State or Territory of the Commonwealth of Australia. “

[7] I note that the AHA have also endorsed a change to Rule 4 to now title it “Interpretation.” It provides a broader and more flexible definition of “licensing legislation.” It will be certified by the Regulatory Compliance Branch of the Commission following this decision with respect to the Conditions of Eligibility Rule.

[8] The application was gazetted in the Commonwealth of Australia Gazette on 29 August 2016 and also published on the Fair Work Commission Website. The AHA also published a notice on its website.

[9] An objection was lodged by Restaurant and Catering Industrial (RCI) on 3 October 2016.

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

“S.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) However, subsection (4) does not apply if the FWC accepts an undertaking from the organisation seeking the alteration that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.

(6) The FWC may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation's right to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of persons.

(7) The FWC 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 the FWC 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.

(8) Subsections (6) and (7) do not limit the grounds on which the FWC may refuse to consent to an alteration of the eligibility rules of an organisation.

(9) Where the FWC 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.

(10) This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:

(a) determined by the FWC under subsection 163(7); or

(b) proposed to be made for the purposes of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or

(c) proposed to be made for the purposes of a withdrawal from amalgamation under Part 3 of Chapter 3.”

[11] I listed the matter for mention on 11 November 2016. Mr P. Ryan appeared for the AHA. Ms M. Wells and Mr J. Hart appeared for the RCI.

[12] The matter was adjourned so that the AHA and RCI could confer.

[13] A further hearing and conference chaired by the Commission took place on 15 December. However no settlement was reached.

[14] Therefore I issued directions for the filing of submissions and evidence and the matter was set down for hearing on 3 March 2017.

[15] However, on 2 March 2017 my chambers were advised that the RCI withdrew its objection and wished to take no further part in the proceedings. I was also advised that there was no settlement agreement rather the RCI simply withdrew its objection.

[16] Mr Ryan was therefore the only appearance at the hearing on 3 March 2017. He made further oral submissions in support of the rule change. There was a discussion about the somewhat repetitious format of Rule 5. I am satisfied however, that the rule is clear. The AHA should give consideration to simplifying the drafting at a convenient time in the future.

[17] Having considered the material filed in support of this application and the withdrawal of the only objection, I am satisfied that there has been compliance with the requirements of the RO Act and the regulations.

[18] 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 would more effectively represent those members.

[19] I therefore consent to the changes to the eligibility rules sought by the AHA.

[20] The change to the eligibility rules of the organisation will take effect seven (7) days after the date of this decision.

DEPUTY PRESIDENT

Appearances:

P. Ryan for the AHA;

M. Wells and J. Hart for RCI.

Hearing details:

2016

Sydney

November 11;

December 15.

2017

March 3.

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Price code C, PR591876