Australian Workers’ Union, New South Wales, The

[2017] FWC 6003

[2017] FWC 6003

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 1, Cl. 6(3) RO Act - Application for an extension by a TRA

Australian Workers’ Union, New South Wales, The

(D2017/10)

Senior Deputy President Hamberger SYDNEY, 15 NOVEMBER 2017

Further extension of transitional recognition of The Australian Workers’ Union, New South Wales (1037_TRN) - Fair Work (Registered Organisations) Act 2009 (Cth) Sch 1 cl 6(3).

1. On 1 November 2017 The Australian Workers’ Union, New South Wales (AWU NSW) applied for a further extension of its status as a transitionally recognised association pursuant to Schedule 1, Clause 6 of the Fair Work (Registered Organisations) Act 2009 (the Schedule).

1. Clause 6 provides as follows:

‘End of transitional recognition

(1) The recognition under this Schedule of a transitionally recognised association that has been granted transitional recognition in relation to an application under subclause 2(1) ends:

(a) when it is cancelled under clause 5; or

(b) when the association becomes an organisation; or

(c) in any other case—at the end of:

(i) unless subparagraph (ii) or (iii) applies—the fifth anniversary of the earliest day on which an organisation can make an application in accordance with subsection 158A(2); or

(ii) if the FWC grants the association an extension under subclause (2) of this clause and subparagraph (iii) does not apply—the sixth anniversary of that day; or

(iii) if the FWC grants the association a further extension under subclause (3) of this clause - the seventh anniversary of that day….

(2) The FWC may, on application by a transitionally recognised association, grant the association an extension for the purposes of subparagraph (1)(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 FWC may, on application by a transitionally recognised association, grant the association a further extension for the purposes of subparagraph (1)(c)(iii) … if the FWC is satisfied that:

(a) the association has made further progress towards:

(i) becoming an organisation; or

(ii) rationalising its internal affairs with those of its federal counterpart; and

(b) there are extenuating circumstances justifying the further extension.’

1. On 13 December 2010 the Minister declared 1 January 2012 as the date from which an application may be made under subsection 158A(1) of the Fair Work (Registered Organisations) Act 2009 (the RO Act). Therefore, in the absence of an extension being granted, transitional recognition ceased on 1 January 2017.

1. Deputy President Lawrence granted an extension of the AWU NSW Branch’s transitional recognition until 1 January 2018 pursuant to clause 6(1) of the Schedule.[1]

1. Clause 6(3) of the Schedule provides that the Commission may, on application, grant a transitionally recognised association a further extension of its recognition until 1 January 2019 if satisfied that the association has made further progress towards becoming an organisation or rationalising its internal affairs with those of its federal counterpart; and there are extenuating circumstances justifying the further extension.

1. I am satisfied that the AWU NSW has, since the extension was granted to its TRA status, made further progress towards rationalising its activities with its federal counterpart, The Australian Workers’ Union (the Federal AWU). However certain difficulties have arisen in relation in establishing conformity between the rules of the AWU NSW and those of the Federal AWU.

1. I am satisfied that these difficulties (as described in the application) constitute ‘extenuating circumstances’ that would justify a further extension of the AWU NSW’s recognition as a transitionally recognised association.

1. I therefore order as follows:

The transitional recognition of The Australian Workers’ Union, New South Wales, is extended until 1 January 2019.

SENIOR DEPUTY PRESIDENT

[1] [2016] FWC 8521

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