Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch

[2016] FWC 9079

[2016] FWC 9079

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
Sch. 1, Cl. 6(2) RO Act - Application for an extension by a TRA

Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch
(D2016/74)

VICE PRESIDENT HATCHER SYDNEY, 20 DECEMBER 2016

Application/Notification for an extension by a transitionally recognised association by The Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch.

Introduction

[1] On 12 December 2016 the Australian Rail, Tram and Bus Industry Union of Employees Queensland Branch (ARTBIUQ), a transitionally recognised association (TRA), lodged an application pursuant to clause 6(2) of Schedule 1 of the Fair Work (Registered Organisations) Act 2009 (RO Act) seeking an extension of its transitional recognition. The application was signed on the ARTBIUQ’s behalf by Mr Owen Doogan, its Secretary. Clause 6(1)(c)(i) of Schedule 1 of the RO Act provides that the transitional recognition of a TRA will end on the fifth anniversary of the earliest day on which an organisation can make an application in accordance with s.158A(2) of the RO Act unless an extension has been granted by the Commission. Section 158A(2) of the RO Act provides that an application cannot be made under that section before 1 January 2011 or such later day as the Minister declares in writing. On 13 December 2013 the then Minister declared 1 January 2012 as the earliest date under s.158A(2) of the RO Act upon which an application under s.158A(1) of the RO Act may be made (Fair Work (Registered Organisations) Declaration 2010). In the absence of an extension being granted, the transitional recognition of the ARTBIUQ will therefore cease on 1 January 2017.

[2] Clause 6(2) of Schedule 1 of the RO Act read in conjunction with cl.6(1)(c)(ii) provides that the Commission may, on application, grant a TRA an extension of its recognition until 1 January 2018 in prescribed circumstances. Clause 6(1)(c)(ii) provides that the recognition of a TRA will end on the sixth anniversary of the earliest date on which a s.158A(1) application may be made if an extension is granted under clause 6(2). Clause 6(2) provides:

(2)  The FWC may, on application by a transitionally recognised association, grant the association an extension for the purposes of subparagraph (1)(c)(ii) or (1A)(c)(ii) if the FWC is satisfied that the association has made progress towards:

(a) becoming an organisation; or

(b)  rationalising its internal affairs with those of its federal counterpart.

[3] The ARTBIUQ cannot satisfy the first condition in paragraph (a) of cl.6(2) because s.19(5) of the RO Act prohibits the Commission from registering an association registered under a State or Territory industrial law if the association has a federal counterpart. The ARTBIUQ is registered as an organisation of employees under the Workplace Relations Act 1999 (Qld). It also has a federal counterpart. The term “federal counterpart” is defined in s.9A(1) of the RO Act to mean an organisation prescribed to be a federal counterpart of a particular association by the Fair Work (Registered Organisations) Regulations 2009 (the RO Regulations). Schedule 1A of the RO Regulations prescribes the Australian Rail, Tram and Bus Industry Union (ARTBIU) as the federal counterpart of the ARTBIUQ (see reg. 8A and item 210 of Schedule 1A).

[4] Accordingly the ARTBIUQ’s application may only be granted on the basis that it satisfies the second condition in paragraph (b) of cl.6.2 - that is, it has made progress towards rationalising its internal affairs with those of its federal counterpart, the ARTBIU.

[5] The ARTBIUQ’s application was accompanied by a witness statement with a number of annexures made by Mr Doogan on 12 December 2016 which sets out the basis for the making of the application. It includes an outlines of the measures that the ARTBIUQ has implemented towards rationalising its affairs with those of the ARTBIU, its federal counterpart, “to aid the efficiency of operating the Branch”. Further submissions in support of the application were filed on 16 December 2016.

Evidence

[6] Mr Doogan’s witness referred to and annexed a “Memorandum of Understanding and Agreement” (MOU) entered into by the ARTBIUQ and the ARTBIU on 2 October 2013. The MOU formalised previous unwritten agreements between the ARTBIUQ and the ARTBIU and rationalised the parties’ internal affairs. The MOU:

1. requires the ARTBIU to provide, oversee and/or perform industrial, financial, accounting, auditing, legal, compliance and advisory services for the ARTBIUQ;

2. provides for joint decision-making in terms of varying services other than those identified above;

3. acknowledges that a party will not collect membership fees from a member where the member belongs to the other party, so that the parties effectively behave as one union;

4. provides for joint membership application forms and adding and removing members from both organisations simultaneously;

5. provides for joint expenditure and resourcing including but not limited to office space, utilities and other outgoings, as well as the payment of joint employees including all wages, all accrued entitlements and any other associated administrative expenses;

6. establishes a dispute resolution procedure in respect of any disputes arising between the ARTBIUQ and the ARTBIU; and

7. provides for joint decision concerning the disposal of assets (including real property).

[7] Mr Doogan also said that in order to simplify and align the internal workings of the ARTBIUQ, it applied to the Queensland Industrial Relations Commission for an exemption from holding elections for certain officer positions. This application was granted on 26 September 2012, and exempted 15 positions in the ARTBIUQ from elections on the basis that such positions were to be held by persons holding corresponding offices in the Queensland Branch of the ARTBIU.

[8] Mr Doogan said in his witness statement that the ARTIBUQ intended to take further steps to align itself with the ARTBIU. It is currently pursuing a rules change by which it will abolish offices which have no equivalent in the ARTBIU and establish a Locomotive Sub-Divisional Committee to correspond to that which already exists under the ARTBIU rules.

Conclusion

[9] I am satisfied, on the basis of the material contained in Mr Doogan’s witness statement and the ARTBIUQ’s submissions that the ARTIBUQ has made progress towards rationalising its internal affairs with those of its federal counterpart, the ARTIBU. Accordingly, the jurisdictional precondition in cl.6(2)(b) of Schedule 1 of the RO Act is satisfied, and I consider it appropriate to exercise my discretion in favour of granting an extension of the ARTBIUQ’s transitional recognition until 1 January 2018.

[10] I therefore order as follows:

Pursuant to clause 6(2) of Schedule 1 of the Fair Work (Registered Organisations) Act 2009, the transitional recognition of The Australian Rail, Tram and Bus Industry Union of Employees Queensland Branch is extended until 1 January 2018.

VICE PRESIDENT

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