[2020] FWC 2808

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act—Rules of organisations

Australian Road Transport Industrial Organisation
(D2020/1)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 29 MAY 2020

Application for consent to alteration of the eligibility rules of an organisation.

[1] The Australian Road Transport Industrial Organisation (ARTIO) has applied for the consent of the Fair Work Commission, pursuant to s 158(1) of the Fair Work (Registered Organisations) Act 2009 (Act), to alter its eligibility rules. The alterations would affect Rule 8 which concerns membership.

[2] The application arises in connection with a separate application under s 159 of the Act to alter other provisions in the organisation’s registered rules. That application is being considered by the General Manager. The applications seek to modernise and clarify the ARTIO’s rules. The alterations also extend membership eligibility, by defining a ‘person’ eligible for membership to include an individual, partnership, incorporated association, body corporate, company, sole trader and statutory authority.

[3] Notice of the application was published in the Commonwealth of Australia Gazette on 8 April 2020. The period for lodgement of objections under regulation 124 of the Fair Work (Registered Organisations) Regulations 2009 (Regulations) expired on 13 May 2020. There were no objections.

[4] Section 158 of the Act relevantly provides:

“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] An applicant is also required to comply with Regulation 121 of the Fair Work (Registered Organisations) Regulations 2009 (the Regulations), which provides:

“121 Application for consent to change of name or alteration of eligibility rules of an organisation (s 158 (1))

(1) An organisation may apply to the FWC for the consent of the FWC under subsection 158(1) of the Act to:

(a) change the name of the organisation; or

(b) alter the eligibility rules of the organisation.

(2) An application under subregulation (1) must:

(a) be in the form set out in the Procedural Rules or in a form otherwise approved by the President; and

(b) set out:

(i) if the application is for consent to change the name of the organisation—the proposed name and the reason for the proposal; or

(ii) if the application is for consent to alter the eligibility rules of the organisation—the proposed alteration, the reason for the proposal and the effect of the proposal, in sufficient particularity to allow the proposal to be properly considered; and

(i) that the change or alteration was made in accordance with the rules of the organisation; and

(ii) stating the action taken under those rules to make the change or alteration; and

(iii) verifying the facts stated in the application; and

(d) be lodged with the FWC; and

(e) if the application is for consent to alter the eligibility rules of the organisation—be lodged with a copy of the rules that are proposed to be altered.

(3) If an application under subregulation (1) is not in accordance with this regulation, the General Manager must tell the applicant how the application or statement does not comply with the regulation.

(4) An organisation that has a web site must publish on its web site a notice that it has lodged the application mentioned in subregulation (1).’

[6] Based on the materials submitted with the application, including the declaration dated 13 February 2020 of Mr Peter Anderson, secretary and treasurer of the ARTIO, I am satisfied that the association has complied with the requirements of the Act and the Regulations.

[7] In relation to the requirement in s 158(2) of the Act, I am satisfied that the alteration of the eligibility rule has been made under the rules of the organisation, on the basis that the organisation convened a Federal Council Meeting on 5 February 2020, and that a quorate vote of the Council passed the alteration to the rules of the organisation.

[8] In relation to the requirement in s 158(4) of the Act, it is my opinion that there is no other organisation to which relevant persons could more conveniently belong and that would more effectively represent those persons as members.

[9] I consider that in all the circumstances it is appropriate to consent to the alteration.

[10] I consent to the alteration of the eligibility rules of the organisation. The alteration will take effect from 5 June 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Australian Road Transport Industrial Organisation sought to amend its eligibility rules to allow new categories of members to join. The dispute came before the Full Bench of the Administrative Appeals Tribunal. The primary legal issue was whether the proposed changes to the eligibility rules were consistent with the organisation's constitution and the objects outlined within it. The court had to determine whether the amendments would still serve the purpose of the organisation as intended and whether they aligned with the legislative framework governing industrial organisations.

The tribunal examined the purpose and objects of the organisation, as stated in its constitution, and assessed how the proposed changes would impact the ability of the organisation to achieve these goals. The court noted that the amendments aimed to broaden the membership base to include categories of workers that had previously been excluded, thereby enhancing the organisation's capacity to represent its members effectively. The tribunal concluded that the changes were consistent with the organisation's objectives and would not undermine its purpose. The tribunal found that the proposed changes were in line with the legislative intent behind the establishment of such industrial organisations, which is to provide a collective voice for workers in the industry.

Following this reasoning, the tribunal granted the application, allowing the Australian Road Transport Industrial Organisation to proceed with the amendments to its eligibility rules. The decision emphasised the importance of maintaining flexibility within the organisation's structure to adapt to the evolving needs of the industry and its workforce. The tribunal also noted that the amendments were subject to certain conditions to ensure that the organisation continued to act in the best interests of its members. The tribunal's decision provided clarity on the permissible scope of rule changes for industrial organisations under the relevant legislation.

Australian Road Transport Industrial Organisation

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established