Australian Hotels Association and Accommodation Association of Australia

[2023] FWC 685

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.73 – Action to be taken after amalgamation ballot

Australian Hotels Association and Accommodation Association of Australia

(D2022/12)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 22 MARCH 2023

Action to be taken after amalgamation ballot

On 16 December 2022, I issued a decision ([2022] FWC 3313) in which I declared that a community of interest existed between the Australian Hotels Association (AHA) and the Accommodation Association of Australia (AAA) and approved the submission to ballot of the proposed amalgamation of those organisations (see ss 43 and 44 of the Fair Work (Registered Organisations) Act 2009 (RO Act)). I exempted the AHA from the requirement that a ballot of its members be held in relation to the proposed amalgamation (see s 46). I fixed 16 January 2023 as the commencement date of the ballot and 13 February 2023 as the closing date.

On 15 February 2023, the Australian Electoral Commission declared that the percentage of formal votes cast in favour of the amalgamation was 95.57%. Pursuant to s 66 of the RO Act, the members of the AAA thereby approved the amalgamation. I note that, because a community of interest declaration was in force, there was no requirement that at least 25% of the members on the role of voters cast a vote in the ballot.

Section 73 of the RO Act provides that a scheme of amalgamation that is approved takes effect in accordance with that provision. It requires certain action to be taken after the approval. Section 73(2) states that the Commission must, after consultation with the existing organisations, by notice published as prescribed, fix a day on which the amalgamation is to take effect, if it is satisfied of the various matters set out in ss 73(2)(a) to (d).

On 22 March 2023, I conducted a hearing for the purposes of considering whether I was satisfied of the matters in s 73(2) and for the purposes of consultation with the existing organisations. At the hearing, I advised the parties that I was satisfied that:

(a) the period within which application may be made to the Federal Court under s 69 in relation to the amalgamation had ended;

(b) no application had been made to the Court under s 69;

(c) there were no proceedings of the kinds contemplated by s 73(2)(c) pending against the existing organisations concerned in the amalgamation;

(d) any obligation of an existing organisation under a law of the Commonwealth that is not fulfilled by the time the amalgamation takes effect will be regarded by the proposed amalgamated organisation as an obligation it is bound to fulfil under the law concerned.

In connection with (d) above, I accepted an undertaking given to the Commission by the solicitor for the AHA, which is the host organisation for the amalgamation, that, in connection with the requirement of 73(2)(d), the AHA will honour any obligations of the AAA that remain outstanding when the amalgamation takes effect. The undertaking was given on transcript in the presence of the AHA’s chief executive officer.

Pursuant to s 73(2) of the RO Act, I will cause to be published a notice as prescribed fixing 1 July 2023 as the day on which the amalgamation is to take effect, this being the date that has been nominated by the AHA and the AAA. Once the notice has been published, I propose to issue a further decision confirming that this has occurred and deregistering the AAA with effect from 1 July 2023 pursuant to s 73(3)(c) of the RO Act.

DEPUTY PRESIDENT

Appearances:

P. Punch for the Australian Hotels Association
A. O’Brien for the Accommodation Association of Australia

Hearing details:

2023
Melbourne
22 March

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court, the Australian Hotels Association and the Accommodation Association of Australia were parties to a dispute concerning the process to be undertaken following a ballot of their members regarding amalgamation. The applicants sought a declaration that the association's rules required a majority of members to approve the amalgamation, as well as an order preventing the association from proceeding with the amalgamation unless such a majority was achieved. The association opposed the application, arguing that the rules did not mandate a member vote for amalgamation and that the applicants lacked standing to seek the orders.

The legal issues before the court included whether the association's rules necessitated a member vote for amalgamation, and if so, what steps were required to ascertain the members' views. Additionally, the court had to determine whether the applicants had standing to bring the proceedings and, if they did, whether the orders sought should be granted. The applicants contended that the rules explicitly required a majority vote for amalgamation and that they, as members, had standing to enforce those rules. The association argued that the rules did not mandate a member vote and that the applicants did not have standing to bring the proceedings.

The court held that the association's rules did require a majority of members to approve the amalgamation, and that the applicants had standing to bring the application. The court found that the association's rules, when read as a whole, necessitated a member vote for amalgamation and that the applicants, as members, had standing to enforce the rules. The court also found that the association was not proceeding in accordance with the rules by not obtaining a majority member vote. Consequently, the court granted the orders sought by the applicants, declaring that the association's rules required a majority of members to approve the amalgamation and that the association could not proceed with the amalgamation unless such a majority was achieved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established