Australian Road Transport Industrial Organization v NatRoad Limited
[2013] FWCFB 8691
•13 NOVEMBER 2013
[2013] FWCFB 8691 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
NatRoad Limited
(C2013/1276)
VICE PRESIDENT HATCHER | SYDNEY, 13 NOVEMBER 2013 |
Appeal against decision [[2013] FWC 5086] of Vice President Watson at Sydney on 26 July 2013 in D2013/101.
Introduction
[1] This is an appeal by the Australian Road Transport Industrial Organization (ARTIO), for which permission to appeal is required, against a decision of Vice President Watson of 26 July 2013 1 (Decision). In the Decision, his Honour rejected an application by ARTIO for the dismissal of an application made by an entity which we will refer to as “NatRoad” for registration as an organisation of employers under the Fair Work (Registered Organisations) Act 2009 (RO Act). ARTIO contends that his Honour erred in rejecting its application, that the Decision should be quashed, and that NatRoad’s application for registration should be dismissed.
NatRoad’s application and the proceedings below
[2] NatRoad lodged its application for registration on 17 January 2013. In the application proper, NatRoad described itself as an association of employers called “The National Road Transport Operators Association (known as ‘Natroad’)”. The application contained a number of schedules which provided further information about the applicant association. Schedule 1 to the application stated that “NatRoad Limited is an incorporated entity and has systems and structures in place to ensure strict compliance with the requirements of the Corporations Act 2001”. Schedule 4 was entitled “Copy of Resolution of members approving Registration”, and attached a copy of a resolution passed at the Annual General Meeting of “NatRoad” on 4 August 2012 to the following effect:
“That NatRoad Ltd submit an application to Fair Work Australia to become a Registered (employer) Organisation under the Fair Work (Registered Organisations) Act 2009.”
[3] Schedule 5 was headed “Rules of the association”, and then attached a document containing a set of rules described as “The Rules of NatRoad Limited (ACN 066 531 913) Registered Organisation”. Rule 2 provided that “The name of the Organisation shall be the National Road Transport Operators Association and shall be known as ‘NatRoad’.” Rule 3 contained an eligibility rule in the following terms:
“Membership of NatRoad may be comprised of an unlimited number of incorporated operators or contractors working in or in connection with the Australia road transport industry including without limitation, fleet operators, general freight, road trains, livestock, grain, tippers, express carriers, tankers and refrigerated operators involved in the business of both intrastate and interstate Road Freight Transport.”
[4] Rule 5.2 of the rules in the application dealt with “Membership” and provided:
“5.2 Membership of NatRoad may be comprised of an unlimited number of operators or contractors, as set out in Rule 3 so long as:
a) a contractor shall be body corporate who or which is a participant in the transport industry and who, or which either has legal control over any number of freight transport vehicles or who organises the movement of freight without legal control of transport vehicles or trailers, but does not include an employee; and
b) an operator shall be body corporate who or which is a participant in the transport industry and who or which has legal control over any number of transport vehicles, but does not include an employee.”
The words and expressions “operator”, “contractor” and “Road Freight Transport” used in rules 3 and 5 were given definitions in rule 1.
[5] The application was accompanied by a statutory declaration made by Geoff Crouch, who described himself as the President of NatRoad Limited, on 16 January 2013, in which he declared that “the facts stated in the application for registration and the supporting documentation lodged are verified as true and correct to the best of my knowledge, information and belief”.
[6] Regulation 21 of the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations) prescribes the form and content of an application as follows:
21 Application for registration (s 18)
(1) An application by an association under section 18 of the Act for registration as an organisation must:
(a) be in the form set out in the Procedural Rules or in a form otherwise approved by the President; and
(b) contain a declaration, made by an officer of the association authorised to make the declaration, verifying the facts stated in the application and in any document lodged with the application; and
(c) be lodged with the FWC; and
(d) be lodged with the following documents:
(i) a list of the members of the association, showing the name and postal address of each member;
(ii) a list of the offices in the association and in each branch of the association;
(iii) a list of the names, postal addresses and occupations of the persons holding the offices;
(iv) a list of the branches of the association, showing for each branch its name and the location of its office;
(v) the rules of the association and the rules of each of its branches;
(vi) a copy of a resolution in favour of the registration of the association as an organisation passed in accordance with the rules of the association by a majority of the members of the association present at a general meeting of the association or by an absolute majority of the committee of management of the association.
(2) An association applying for registration may lodge with the FWC an additional statement supporting the application.
[7] There is also a prescribed form (Form F55) for the making of an application by an association of employers for registration as an organisation. 2 That form among other things requires the applicant association to identify its name.
[8] On its face, the application lodged by NatRoad was one which conformed to the requirements of reg 21 and Form F55. However, as must have been apparent by the time of the hearing of ARTIO’s dismissal application before Vice President Watson, the application as to its substance did not conform to reg 21 or Form F55 and was potentially misleading in at least two major respects. Firstly, the actual name of the applicant NatRoad was not “The National Road Transport Operators Association” but “NatRoad Limited”. NatRoad is an Australian public company, limited by guarantee, registered under the Corporations Act 2001 with the Australian company number 066 531 913. Secondly, the rules attached in Schedule 4 to the application were not in fact the rules of NatRoad (either at that time or at any time since). They were no more than a draft set of rules which NatRoad proposed to adopt at some later stage. Thus NatRoad’s application was seriously irregular. It amended some aspects of its application shortly after lodgement in response to some issues raised by the Commission’s Regulatory Compliance Branch, but not as to the matters we have identified.
[9] Regulation 22 of the RO Regulations requires the General Manager of the Commission, as soon as practicable after the receipt of an application for registration, to publish a notice in the Gazette stating that an application for registration has been received. The purpose of this requirement is to give interested organisations, associations or persons an opportunity to lodge an objection to the application; under reg 23 such an objection must be lodged within 35 days after the publication of the notice in the Gazette. The notice which the General Manager published, in reliance upon the information contained in NatRoad’s application, stated that the applicant was called “The National Road Transport Operators Association (known as ‘Natroad’)”, and set out the eligibility and membership rules contained in Schedule 4 to the application. Thus the reproduction of misleading information contained in the application made the notice itself misleading.
[10] ARTIO lodged an objection to NatRoad’s application on 19 March 2013. Among the grounds for ARTIO’s objection were that NatRoad:
“...has not lodged its Constitution (as in force on the date of lodging the subject application), nor has the company made application in its company name - contrary to the mandatory provisions applying to applications for registration as required by Regulation 21 of the Fair Work (Registered Organisations) Regulations 2009.”
[11] ARTIO’s objection went on to contend that:
“... these defects in the purported application are not curable under section 25 of the RO Act (as part of permissible amendments to an application leading to registration under the RO Act).”
[12] Vice President Watson conducted a preliminary hearing on the “technical” aspects of ARTIO’s objection, including the grounds identified immediately above and ARTIO’s contention that NatRoad’s (proposed) eligibility and membership rules were vague, ambiguous and insufficiently specific, on 12 July 2013. The Decision records that NatRoad at this hearing made the following submissions:
“[13] NatRoad contends that simultaneous incorporation under two Acts is clearly contemplated under the RO Act and has been available since its enactment in 2005. It contends that ARTIO has not referred to s.18A and that this provision provides an answer to much of the technical objections raised by ARTIO. NatRoad submits that once this notion is accepted it is then a question of what process is appropriate to have rules adopted that comply with the requirements of the RO Act. The course it has followed is to propose a set of rules that comply with those requirements, amend them as necessary to enable it to comply with the RO Act and upon registration being approved, replace its existing rules with the proposed RO Act-compliant rules. The CEO of NatRoad, Chris Melham, gave evidence that this was NatRoad’s intention.”
[13] In the Decision, his Honour rejected ARTIO’s “technical” objections. The reasoning in the Decision was as follows:
“[15] I am not satisfied that the technical objections have substance.
[16] The name of the proposed organisation is NatRoad Limited. That is clear from the documentation and submissions in the matter.
[17] The eligibility rule covers operators and contractors working in or in connection with the Australian road transport industry. The words which follow this general description provide further clarification of what is intended to be included within that description. Some of these terms, such as “Road Freight Transport” are further defined in clause 1 of the rules. I do not consider that these terms are inherently ambiguous or are not sufficiently specific. I am satisfied that they comply with the requirements of the RO Act.
[18] The process adopted by NatRoad regarding its rules is to authorise the application for registration under its existing corporate rules, to propose registered rules in its application in the same manner as a non-corporate entity would propose rules and upon registration replace its corporate rules with the registered rules. ARTIO has failed to establish any non-compliance, breach or defect in this process. I do not consider that this process offends any provision of the RO Act.
[19] For these reasons I reject the technical objections advanced by ARTIO. The matter will be listed for further hearings in relation to the merit objections.”
[14] ARTIO’s appeal against the Decision contained a number of grounds. However, at the hearing of the appeal, ARTIO usefully reduced the issues raised by its appeal down to the following two questions:
(1) Whether, as Vice President Watson found, the process adopted by NatRoad regarding its rules in order to satisfy the requirements of reg 21 of the RO Regulations constitutes a valid application for registration as an organisation of employers, or whether, reg 21 of the RO Regulationsread in context of the Act and the Regulations as a whole required that the application for registration included the operative rules of the applicant association as at the time of the application in order to be valid.
(2) If the appellant is wrong about the construction of reg 21 of the RO Regulations, whether Vice President Watson erred in finding that NatRoad would or could upon registration replace its corporate rules with the registered rules.
[15] We propose to consider the appeal by reference to these two questions.
First Question
[16] We consider that it is clear that NatRoad’s application did not comply with the requirements of reg 21, in that it did not properly identify NatRoad’s actual name of the applicant association and it did not contain the actual rules of NatRoad. To the extent that Vice President Watson found that there was no “non-compliance, breach or defect” in the making of NatRoad’s application, we must respectfully disagree. Regulation 21(1)(a) is plain in its requirement for an applicant association to file an application in accordance with the prescribed form, which (in Form F55) requires identification of the actual name of the applicant to be identified - not some future proposed name. Regulation 21(1)(d)(v) is equally plain in its requirement for the application to be accompanied by a copy of its rules - that is, its actual rules, not what they might be at some future time. That this is the case has been acknowledged in decisions such as Society of Australian Surgeons 3, Australian Community Services Employers Association, Queensland Union of Employees4 and Australian Furniture Removers Association Incorporated5. In the last decision Hamberger SDP specifically rejected an argument that reg 21 (of the then Workplace Relations (Registration and Accountability of Organisations) Regulations 2003, but in form virtually identical to the current reg 21), insofar as reg 21(1)(d)(v) required an applicant association to lodge its rules with the application for registration, was referring to the rules as they might be post-registration6, and his Honour made it clear that it was “the actual rules of the association as they currently apply” that were required to be lodged.7
[17] It became apparent during the course of argument in the appeal that NatRoad’s failure to comply with reg 21 was not accidental or the result of a mistake, but deliberate. Its avowed strategy, which it boldly characterised as “orthodox”, was to lodge a set of rules with its application which were only proposed rules, and then to make an application under s.25 of the RO Act for leave to amend its actual rules to bring them in line with the proposed rules lodged with the application at some later stage in the proceedings. In support of this approach, NatRoad submitted that its application for registration raised a novel “issue of how an existing corporate applicant is to comply with the criteria for registration”, and suggested that its pre-existing corporate status meant that reg 21 either was not or should not be applicable.
[18] We reject that submission. Its premise is incorrect. There is nothing new about incorporated entities seeking registration as organisations under the RO Act or its predecessors. It is true that when the Workplace Relations Amendment (Work Choices) Act 2005 changed the constitutional underpinning of the federal industrial relations legislation so that there was a primary reliance upon the corporations power instead of the industrial disputes power, the registration provisions then contained in Schedule 1 to the Workplace Relations Act (which in 2009 metamorphosed into the RO Act) were amended to add s.18A, which contained for the first time a specific reference to a “constitutional corporation” being a species of employer association that was federally registrable. However, that did not mean that incorporated entities were not registrable before that time, or were not in fact registered before that time. Before the Work Choices amendments, s.18 of Schedule 1B of the Workplace Relations Act and the legislative predecessors of that provision dating back at least to the enactment of the Industrial Relations Act 1988 provided that “an association of which some or all of the members are employers who are capable of being engaged in an industrial dispute” was (subject to certain membership requirements) registrable as an organisation. Clearly, previously incorporated employer associations were capable of being registered according to this criterion 8, and many of them were. The fact that such applicant associations were incorporated entities never meant that they were relieved of the requirement to make applications for registration on the basis of their existing rules, or that they could apply on the basis of some proposed set of rules which might be adopted in the future. For example, in Master Grocers’ Association of Victoria Limited, when an employer association which was an Australian public company limited by guarantee applied for registration in 2000, it included in its application its current rules; those rules were subsequently altered (pursuant to leave granted by the Commission) to meet issues which were raised concerning compliance with the legislation, and the association was only registered once the Commission was satisfied that the rules had been altered in a way which complied with the Act.9 No special approach was taken merely because the applicant was already an incorporated entity. Nor is NatRoad the first incorporated entity to apply for registration as an employer organisation since the Work Choices amendments; for example in Australian Security Industry Association Ltd the Commission in 2010 approved the registration of the Australian Security Industry Association Ltd, an Australian public company limited by guarantee, on the basis of the rules filed with the Association’s application but as subsequently amended in order to dispose of an objection by another organisation.10
[19] However, although reg 21 is expressed in imperative terms, we do not consider that a failure to comply with the regulation - even an egregious failure, as here - operates to invalidate the application, in the sense of rendering it void. We agree with the view expressed by Williams SDP in Society of Australian Surgeons as follows (noting that regulation 33 of the Workplace Relations Regulations which he discusses is in substance the same as the current reg 21):
“[93] The provisions of Regulation 33(1) are mandatory. There is a considerable body of authority that non-compliance with like provisions renders an application invalid. However, these decisions relate to the legislation as it was when such applications were dealt with at first instance by Industrial Registrars who did not have the powers conferred by the Act upon the Commission. I do not resile from the view I expressed in Re Victorian Principals Federation that -
where, by reason of non-compliance with Regulation 33 an application for registration is so defective that it would not constitute an "application", the designated Presidential Member has the power under s.111(1) to allow an amendment or a correction which would bring the application into compliance with the requirements of that Regulation.
There is also much to commend the view that "in registration cases every effort should be made to assist applicants to overcome purely technical objections".
[94] Accepting as I do that the powers conferred by paragraphs (p) and (r) of s.111(1) are available, it must also be accepted that their exercise is discretionary, to be exercised in the circumstances of a particular case. It may be that, in registration cases, they should be exercised only for the purpose of allowing "purely technical objections" to be remedied. Be that as it may, it is possible that any defects that may exist in the registration application might be remedied so as to bring it into compliance with the requirements of Regulation 33. Factors which might be taken into account for the purposes of determining whether or not the powers should be exercised would, in my view, include the nature and extent of the non-compliance with Regulation 33, the level of unfairness to the applicant association in not exercising the powers and the degree of prejudice to objectors if the powers were to be exercised.”
[20] Under paragraphs (p) and (r) of s.111 of the Workplace Relations Act, the Commission was empowered to “allow the amendment, on such terms as it considers appropriate, of any application or other document relating to any proceeding” and to “correct, amend or waive any error, defect or irregularity, whether in substance or form”. There is no direct equivalent of these provisions in the RO Act, but reg 179 of the RO Regulations empowers the Commission to exempt a person from compliance with procedural requirements. Regulation 179 provides:
179 Proceedings before FWC
(1) In any proceedings before the FWC, the FWC may exempt a person from compliance with a procedural requirement under the Act or these Regulations if the FWC is satisfied there are special circumstances.
(2) An exemption under subregulation (1) may be granted:
(a) absolutely; or
(b) subject to conditions.
(3) Failure to comply with a procedural requirement for proceedings before the FWC does not render the proceedings void but the proceedings may be:
(a) set aside, either wholly or in part, as irregular; or
(b) amended; or
(c) otherwise dealt with as and how the FWC thinks fit.
[21] Regulation 179(3) clearly identifies that a failure to comply with any relevant procedural requirement in proceedings under the RO Act does not wholly invalidate the proceedings; it requires an order by the Commission setting aside the proceedings as irregular in order for the failure in compliance to become fatal to the proceedings. We consider that the requirements in reg 21 as to the form and content of an application for registration are procedural in nature. They were so described by Richards SDP in VIPA - Independent Pilots Group. 11 The explanatory statement concerning the Workplace Relations (Registration and Accountability of Organisations) Regulations 2003, in which reg 179 first appeared, stated that Part 3 Division 1 of those regulations (in which reg 21 was located) set out the “procedural requirements for the registration of employee and employer organisations”. There is nothing in the text of reg 21, reg 179 or any other part of the RO Regulations which would operate to displace the conclusion that reg 179(3) applies to the procedural requirements of reg 21.
[22] We conclude therefore that NatRoad’s application, though highly irregular in that it was deliberately non-compliant with reg 21, is not invalid in the sense of being void. However, that does not mean that NatRoad’s non-compliance can now simply be ignored. Given that NatRoad cannot now rectify its non-compliance in the current proceedings, we consider that it is necessary for NatRoad, if it wishes to proceed with this application, to apply under reg 179(1) for exemption from compliance with reg 21. No such application was ever made before Vice President Watson. If such an application is not made, we consider that NatRoad would be liable to have its application set aside as irregular under reg 179(3)(a). This is a matter to which we will return.
Second Question
[23] Section 19 of the RO Act sets out the criteria which must be satisfied in order for an application for registration as an organisation to be granted. The criterion in s.19(1)(f) is as follows:
(f) the rules of the association make provision as required by this Act to be made by the rules of organisations;
[24] We consider that two propositions are well-established from previous decisions: first, that the reference to the “rules” of the Association in s.19(1)(f) means the actual rules of the association, not proposed rules which might be adopted at some time in the future; and second, that the time in which satisfaction of the criterion in s.19(1)(f) is to be assessed is at the time that the Commission makes the decision to register or not register the applicant association. In Victorian Principals Federation 12 Williams SDP said (by reference to s.189(1)(e) of the Workplace Relations Act 1996, the then equivalent of the current s.19(1)(f)):
“[101] It is clear, therefore, that the point in time at which the designated Presidential Member must be satisfied that the requirement of s.189(1)(e) has been met is at the time when the eventual decision to register or refuse to register is being made. Where the rules of an applicant association do not "make provision as required by this Act", they clearly fall within the category described in paragraph (a). Should, therefore, a designated Presidential Member conclude that an applicant association has rules which do not "make provision as required by this Act", an opportunity could be afforded to that applicant to apply for leave to alter its rules to bring them into line with the requirements of the Act. If acceptable alterations are proposed, leave could then be granted for such alterations to be made and, if all other requirements are satisfied, registration could be granted.” 13
[25] Similarly, Hamberger SDP in Australian Furniture Removers Association Incorporated said:
“[18] Thus sub-section 19(f) of the RAO schedule states that one of the criteria for registration that must be met by an association seeking registration is that:
“the rules of the association make provision as required by this Schedule to be made by the rules of organisations”.
[19] The first reference is to the “rules of the association”; the second reference is to the “rules of organisations”. However the point of the sub-section is that one of the requirements for an association seeking registration as an organisation is that its rules meet the requirements that are imposed on registered organisations – not that it will bring those rules into compliance with those requirements once it has been registered.
[20]This is made even clearer when one has regard to the scheme for applicants for registration to change their name or alter their rules contained in Section 25 of the RAO schedule.” 14
[26] We endorse the above conclusions. The requirement in s.19(1)(f) is one of a number of specified conditions for the registration of an association which must be satisfied at the time a decision whether to register as applicant association is made. If it is not satisfied at that time, registration must be refused: “On the face of it, it seems rather obvious that, absent satisfaction of every condition in the subsection, the Commission must not grant the application and, as a statutory body of limited jurisdiction, what it must not do it could not do”. 15 The condition in s.19(1)(f) concerns the “rules of the association”; there is no warrant to read this as meaning anything other than the rules of the applicant association as they are at the time that the decision whether to register is made. As Hamberger SDP pointed out in the passage quoted above, the point of the provision is to impose upon an applicant for registration the RO Act’s requirements concerning the content of the rules of registered organisations. If an association could wait until after registration to bring its rules into conformity with the RO Act’s requirements for registered organisations, then s.19(1)(f) would not be a prior condition for registration at all and would serve no practical purpose. Additionally (and again, as observed by Hamberger SDP), s.25 of the RO Act points to the necessity of an applicant association having adopted rules which comply with the Act prior to the determination of its application. Section 25 provides:
25 Applicant for registration may change its name or alter its rules
(1) The FWC may, on the application of an association applying to be registered as an organisation, grant leave to the association, on such terms and conditions as the FWC considers appropriate, to change its name or to alter its rules:
(a) to enable it to comply with this Act; or
(b) to remove a ground of objection taken by an objector under the regulations or by the FWC; or
(c) to correct a formal error in its rules (for example, to remove an ambiguity, to correct spelling or grammar, or to correct an incorrect reference to an organisation or person).
Note: Paragraph (a)—in order for an organisation to comply with this Act, its rules must not be contrary to the Fair Work Act (see paragraph 142(1)(a) of this Act).
(2) An association granted leave under subsection (1) may change its name, or alter its rules, even though the application for registration is pending.
(3) Rules of an association as altered in accordance with leave granted under subsection (1) are binding on the members of the association:
(a) in spite of anything in the other rules of the association; and
(b) subject to any further alterations lawfully made.
[27] The purpose of s.25(1)(a) was described by Richards SDP in Australian Community Services Employers Association, Queensland Union of Employees as to allow “the applicant association to take corrective action without the necessity of dismissal of its current application for registration and re-application”. 16 The capacity under s.25(1)(a) for an applicant association to obtain leave to vary its rules “to enable it to comply with this Act” would only serve a purpose if there was a requirement for the applicant to have its rules in an RO Act-compliant state prior to registration. This facilitative provision would not be necessary if an association would simply wait until it had achieved registration before it adopted RO Act-compliant rules. Section 25 therefore confirms that s.19(1)(f) is to be read according to its ordinary meaning.
[28] Vice President Watson’s conclusion that it was open under the RO Act for NatRoad “to propose registered rules in its application in the same manner as a non-corporate entity would propose rules and upon registration replace its corporate rules with the registered rules” was therefore incorrect. NatRoad’s satisfaction of the registration criterion in s.19(1)(f) must be assessed by reference to its rules as they are at the time the registration decision is made, not on the basis of any proposed set of rules which might be adopted at some future time. We would add that it is not the case that a “non-corporate entity” can merely “propose registered rules”; the conclusions we have expressed concerning s.19(1)(f) apply equally to corporate and non-corporate applicants for registration, and we are not aware of any decision where any contrary approach has been taken.
[29] We note that NatRoad did not in the appeal attempt to submit that the conclusion of his Honour to which we have referred was correct, and indeed its submissions were consistent with the conclusions we have stated. Indeed, NatRoad contended that it had never submitted before his Honour that it intended to proceed on the basis that any amendment to its rules was proposed to occur only after registration, and stated that “The intent of Natroad’s submission before Watson VP was plainly to make application pursuant to s.25 prior to the time of registration to regularise the rules”. 17 With respect, we do not consider that NatRoad made such a position plain at all. At the hearing, NatRoad called evidence (by way of a witness statement) from its Chief Executive Officer, Mr Chris Mellam. Mr Mellam said (underlining added):
“It is intended that, if NatRoad’s application for registration is successful, the Rules of the registered association, lodged with the Fair Work Commission in accordance with the requirements of the Fair Work (Registered Organisations) Act 2009 ... will replace the Constitution.”
[30] We consider it likely that this statement of intention, which was referred to expressly in the Decision 18, led his Honour into the error we have identified. We also note that at no time during the period of over six months between the lodgement of the application and the date of the Decision had NatRoad actually made any application under s.25 of the RO Act.
Disposition of the appeal
[31] Because the Decision was attended by the errors we have identified, the appropriate course is to grant permission to appeal and quash the Decision. However, for the reasons we have identified, it does not follow that NatRoad’s application for registration needs to be dismissed. Its failure to comply with reg 21 does not render its application void, and now that that failure has clearly been identified in this decision, it should have the opportunity to regularise its position by making an application under reg 179(1) for exemption from the procedural requirements of reg 179(1). That of course will require it to satisfy the Commission that the requisite “special circumstances” exist. That NatRoad is an incorporated entity would not, at least by itself, constitute a special circumstance. Should such an application not be made, or should it be made and not succeed, we consider that NatRoad’s application for registration should be dismissed under reg 179(3)(a) as irregular. If such an application is granted, consideration will need to be given to whether there needs to be a re-gazettal of its application. 19
[32] If NatRoad is able to regularise its application under reg 179(1), then as earlier discussed that application will fall to be considered under s.19 of the RO Act by reference to the rules of NatRoad as they actually are at the relevant time, not the proposed set of rules lodged with the application. If NatRoad wishes to apply for leave under s.25 to amend its actual rules so that they are consistent with the proposed set of rules lodged with the application, it should do so promptly so that the objectors have proper notice of the nature of the application they will have to meet.
[33] There are two further matters which arose during the hearing of the appeal about which some comment is required. First, it became apparent that NatRoad had, between the issue of the Decision and the hearing of the appeal, actually amended its rules. However, it appears that something went awry during the process, in that NatRoad did not adopt the set of proposed rules which was lodged with its registration application (as we assume was its intention), but some other different set of rules. It undertook this process without first having obtained leave to do so under s.25. The probable result of this is that such amended rules cannot be considered for the purpose of obtaining registration. 20 In any event, we took it from NatRoad’s submissions that it would not seek to rely upon such rules at any hearing of its registration application, and that its intention was that it would make an application under s.25 for leave to adopt the set of proposed rules which it lodged with its application.
[34] Second, NatRoad submitted that if and when it made an application under s.25, the grant of such an application would itself effect the desired rules changes without NatRoad having to actually take the internal steps required by its existing rules to change its rules. We reject this submission. Section 25 does not empower the Commission by order to vary the rules of an applicant association; rather it empowers the Commission to grant leave to the applicant association for the applicant association to alter its rules. That it is the applicant association pursuant to the grant of leave, not the Commission, which alters the association’s rules is made clear by subsection (2). In Voluntary Care Association of New South Wales and Australian Capital Territory Moore DP (as he then was) described a three-step process in relation to s.190, the relevantly identical equivalent provision contained in the then Industrial Relations Act 1988:
“Section 190 contemplates the making of an application (s.190(1)), the granting of leave (s.190(1)) and the alteration of the rules (s.190(2)) and that those events occur in that order.”
[35] Moore DP in that decision also pointed to the earlier equivalent provision to be found in s.71 of the Conciliation and Arbitration Act 1904 as at 1950, which was drafted in a way which made it clear that the order of the then Court and the adoption of the altered rules by the association were two discrete steps in the process (underlining added):
71. Any association applying to be registered as an organization may on application to a Judge obtain power to adopt and may thereupon adopt any rules to enable it to comply with the prescribed conditions as part of its rules, and any rules adopted in pursuance of this section shall notwithstanding anything in the constitution or rule of the association to be binding on the members of the association.
[36] Immediately before the repeal of the Conciliation and Arbitration Act 1904, the relevant provision was s.134, which in subsection (1) made clear the same sequential process (underlining added):
134. (1) The Registrar may, upon the application of an association applying to be registered as an organization, grant leave to the association, on such terms and conditions as the Registrar thinks fit, to alter its rules to enable it to comply with the prescribed conditions or to remove a ground of objection taken by an objector in accordance with the regulations or by the Registrar and, notwithstanding the fact that the application for registration is pending, the association may alter its rules accordingly.
[37] In Society of Australian Surgeons, Williams SDP took the same approach as Moore DP:
“[110] The granting of leave under that section does not itself effect any alteration to an applicant association's rules. Alterations are to be made by the association pursuant to such leave.”
[38] In support of the approach it contended for, NatRoad pointed to the following passage in the judgment of Lander J in Australian Education Union v Lawler:
“[83] Section 25(2) permits an application of that kind to be made even though the application for registration is pending. When leave is granted the altered rules bind the members of the association: s 25(3). Insofar as Re Society of Australian Surgeons (2003) 122 IR 447 decides otherwise, it should not be followed.”
[39] There is nothing in the first two sentences of the above passage which is contrary to the view about s.25 we have expressed or what is stated in the earlier authorities. What it was in Re Society of Australian Surgeons that his Honour was suggesting should not be followed was, with respect, not made clear. The passage was not adopted by the other members of the Full Court (Moore and Jessup JJ), and was probably obiter. We do not consider that it dictates the adoption of the approach to s.25 contended for by NatRoad.
[40] Finally, we make the observation that it would probably be simpler procedurally for NatRoad to discontinue its current application and start again by way of a new application once it has its house in order. However, we accept that that is a matter for NatRoad.
[41] We order as follows:
(1) Permission to appeal is granted.
(2) The Decision of Vice President Watson of 26 July 2013 is quashed.
(3) Under s.607(3)(c) of the Fair Work Act 2009 NatRoad’s application for registration as an organisation of employers is remitted to Vice President Watson to be dealt with in accordance with these reasons for decision subject to the following:
(a) NatRoad’s application is to be dismissed unless NatRoad, within 14 days of the date of this decision (or such longer period as Vice President Watson may allow), makes an application under reg 179 of the RO Regulations for exemption from compliance with reg 21 of the RO Regulations.
VICE PRESIDENT
Appearances:
B. Lacy of counsel with P. Ryan for the Australian Road Transport Industrial Organization
T. Dixon of counsel with S. Ryan, solicitor,for NatRoad Limited
Hearing details:
2013.
Sydney:
23 October.
1 [2013] FWC 5086
2 Fair Work Australia Rules 2010 Schedule 2 Form F55
3 PR934448 at [71], [84]
4 [2008] AIRC 592 at [69]
5 [2008] AIRC 444
6 Ibid at [11]-[22]
7 Ibid at [22]
8 Moore DP (as he then was) made some obiter comments in Voluntary Care Association of New South Wales and Australian Capital Territory Print J1979 (28 March 1990) in which he “entertain[ed] some doubts” as to whether a body incorporated under state legislation was registrable, but that decision has not subsequently served to impede the registration of incorporated bodies. In R v Cawthorne; Ex parte Federated Clerks Union of Australia (1979) 22 SASR 433 dual incorporation of an association under State law was recognised as permissible. This decision was cited with approval by MacBean DP in Australian Social Welfare Union v Australian Workers’ Union Print K2519 (1 May 1992).
9 Master Grocers’ Association of Victoria Limited PR923977 (23 October 2002) and PR927823 (19 February 2003).
10 Australian Security Industry Association Ltd [2010] FWA 3121. Similarly see Australian Gift and Homewares Association Limited PR974461 (25 October 2006) at [5].
11 [2009] AIRC 68 at [11]
12 (1999) 95 IR 262; this decision was ultimately quashed on appeal (see Australian Education Union v Victorian Principals Federation (19 July 2000) S8092 and Australian Education Union v Victorian Principals Federation(2001) 113 IR 365) but the correctness of the quoted passage was not in issue.
13 The same approach was taken by Lander J in Australian Education Union v Lawler (2008) 169 FCR 327 at [86]
14 The same conclusion was stated by Richards SDP in Australian Community Services Employers Association, Queensland Union of Employees at [25]-[26].
15 Australian Education Union v Lawler (2008) 169 FCR 327 at [207] per Jessup J.
16 At [22].
17 NatRoad written appeal submissions, paragraph 58.
18 At [13]
19 This issue was discussed by Richards SDP in Australian Community Services Employers Association, Queensland Union of Employees at [63]-[68]
20 Society of Australian Surgeons at [109]; Voluntary Care Association of New South Wales and Australian Capital Territory; Building Workers Industrial Union of Australia v Amalgamated Engineering Union (Australian Section) (1952) 74 CAR 53 at 61 per Foster J.
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