Australian Workers' Union, West Australian Branch, Industrial Union of Workers

[2017] FWC 1454

[2017] FWC 1454

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 Workers' Union, West Australian Branch, Industrial Union of Workers
(D2016/82)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 16 MARCH 2017

Application for an extension by a transitionally recognised association – effect of merger – application dismissed for want of jurisdiction.

[1] This decision deals with an application, made by The Australian Workers Union, West Australian Branch, Industrial Union of Workers (the AWUWA) pursuant to Schedule 1, Clause 6(2) of the Fair Work (Registered Organisations) Act 2009 (the FWRO Act). That application, lodged on 21 December 2016, seeks an extension of the status of the AWUWA as a Transitionally Recognised Association, to 1 January 2018. On 23 December 2016 I issued an interim decision 1 extending the transitional recognition of the AWUWA pending the determination of this application. Subsequent to that interim decision, directions requiring the provision of additional material were issued. Additionally, the National Union of Workers has provided written advice and has requested to be heard in relation to this application.

[2] The transitional recognition of the AWUWA has its genesis in Schedule 10 of the Workplace Relations Act 1996 (the WR Act). Clause 2 of that Schedule stated:

“2 Application for transitional registration

(1) A State-registered association may apply to a Registrar for transitional registration under this Schedule if:

(b) immediately before the commencement of this Schedule, it had at least one member who was:

(i) an employee whose employment was subject to a State award, a State employment agreement or a State or Territory industrial law; or

(ii) an employer in relation to such an employee; and

(c) immediately before the commencement of this Schedule, it was entitled to represent the industrial interests of the member in relation to work that was subject to the State award, the State employment agreement or the State or Territory industrial law; and

(d) on the reform commencement, the employee will become bound by, or the employment of the employee will become subject to, a preserved State agreement or a notional agreement preserving State awards if he or she continues in that employment; and

(e) it is not also an organisation, or a branch of an organisation.

(2) The application must be accompanied by:

(a) evidence to establish the fact that the association satisfies subclause (1); and

(b) a copy of the current rules of the association; and

(c) a statement setting out:

(i) the address of the association; and

(ii) each office in the association; and

(iii) the name and address of each person holding office in the association.

(3) If a Registrar is satisfied that the association satisfies subclause (1), the Registrar must, by written instrument, grant the application and record the fact that he or she is so satisfied.

(4) An instrument under subclause (3) is not a legislative instrument.

(5) The Registrar must give a copy of the instrument to the association.

(6) A State-registered association is taken to be registered under this Schedule when the Registrar grants the application.”

[3] On 15 June 2006 the then Deputy Industrial Registrar determined that the AWUWA was a State-registered association which had at least one member who was an employee whose employment was subject to a State award, a State employment agreement or a State or Territory industrial law AND that immediately before the commencement of that Schedule it was entitled to represent the industrial interests of the member in relation to work that was subject to the State award, the State employment agreement or the State or Territory industrial law AND that on the reform commencement, the employee became bound by, or the employment of the employee became subject to, a preserved State agreement or a notional agreement preserving State award if he or she continued in that employment AND that the AWUWA is not also an organisation, or a branch of an organisation, and granted transitional registration. 2

[4] Schedule 1 of the FWRO Act sets out arrangements applicable to transitionally recognised associations of employees. The particularly relevant part of Schedule 1 of the FWRO Act is clause 6, which states:

“6 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.

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

(i) the day (the default day) that is the later of the fifth anniversary of the day the Fair Work Amendment (Transfer of Business) Act 2012 commenced and a day prescribed by the regulations;

(ii) if the FWC grants the association an extension under subclause (2)—the anniversary of the default day;

(iii) if the FWC grants the association a further extension under subclause (3)—the second anniversary of the default 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) 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 FWC may, on application by a transitionally recognised association, grant the association a further extension for the purposes of subparagraph (1)(c)(iii) or (1A)(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.”

[5] On 13 December 2010 the then relevant Minister declared 1 January 2012 as the date under the, then applicable, Fair Work Registered Organisations Act 2009 (the RO Act). As a consequence, unless an extension is granted pursuant to Clause 6 of the FWRO Act, the transitional recognition of the AWUWA ceased to have effect on 1 January 2017.

[6] In its application, and in material provided after that application, the AWUWA indicated that it relied on the provisions of Clause 6(2) such that its transitional recognition would apply until 1 January 2018. The AWUWA advised that there is substantial overlap between its operations and those of its federal counterpart, the AWU. This extended to property access arrangements, membership and membership income, elections and governance arrangements. It advised that the AWUWA had made progress toward rationalising its internal affairs with those of the AWU and that an extension of its transitional recognition was necessary to enable it to complete that process. The AWUWA advised that, in July 2015 the AWU made an application pursuant to s.158 of the Fair Work Act 2009 (the FW Act) to amend its rules to incorporate the eligibility rules of the AWUWA. 3 Significantly, the AWUWA advised that, subsequent to the approval of that amendment4 the AWUWA advised that it was approached by the Food Preservers Union of Western Australia Union of Workers (FPU), seeking an amalgamation of the two organisations. The AWUWA noted that the FPU did not have a counterpart federal body but had obtained transitional registration on 24 February 2009.5 The AWUWA advised that the proposed amalgamation was approved by both bodies and that an application for endorsement of it was subsequently made to the Western Australian Industrial Relations Commission (the WAIRC) pursuant to the Industrial Relations Act 1979 (WA) (the WA IR Act). On 14 December 2016 the WAIRC approved an amalgamation between it and the FPU.6 The AWUWA has confirmed that, subsequent to this approval decision, the AWUWA made a further application to the WAIRC for orders, pursuant to s.66 of the WA IR Act relating to office holder elections and that an interim order was made in this respect on 16 December 2016.7 Further, on 16 December 2016 the AWU WA made a further application to the WAIRC pursuant to s.71 of the WAIRC whereby it sought a declaration which would entitle the AWUWA to a certificate that would exempt it from compliance with the WAIR Act relating to elections and would deem the persons holding a corresponding office in the AWU Branch to hold a corresponding office in the AWUWA. The AWUWA advised that a further application, pursuant to s.158A of the FW Act had been made so as to incorporate the FPU eligibility rules into the Federal AWU rules. The AWUWA advised that, if the extension of the transitional registration of the AWUWA was not approved, members and members of the FPU will be substantially disadvantaged.

[7] At this juncture it is appropriate that I explain the involvement of the National Union of Workers (the NUW) and the position put by that union. On 2 February 2017, Mr Fogliani, of counsel, advised he was representing the NUW and asserted that, in light of the WAIRC decision of 14 December 2016, 8 the application was without jurisdiction. Mr Fogliani advised:

“The organisation that has made an application to you under clause 6 (2) of schedule 1 of the Fair Work (Registered Organisations) Act 2009 (Cth) has never been transitionally registered under clause 2 of schedule 10 of the Workplace Relations Act 1996 (Cth) or transitionally recognised under schedule 1 of the Fair Work (Registered Organisations) Act 2009 (Cth). It is therefore impossible for it to make the application that is has made.” 9 (sic)

[8] This position was brought to the attention of the AWUWA. The scheduled hearing of the application was delayed to enable the AWUWA to properly address this issue. In a written submission, 10 the NUW set out the basis upon which it sought an invitation from the Commission, pursuant to s.590 of the FW Act to participate in the matter as an intervener. This issue was dealt with in a hearing on 28 February 2017. I note that the NUW’s requested participation in the proceedings was strongly opposed by the AWUWA.

[9] In the course of the hearing on 28 February 2017 I refused to permit the NUW to participate in the proceedings as an intervener and declined to invite the NUW to provide oral submissions. However, consistent with s.590(2)(b) of the FW Act, I invited the NUW to provide any written submissions to the Commission (which it considered to be appropriate), and to the AWUWA. Those written submissions were received on 3 March 2017. 11

[10] In those submissions, the NUW confirmed its position that, before the Commission was able to exercise the discretion inherent in Clause 6(2) of Schedule 1 of the FWRO Act, it must be satisfied that it had received an application from a “transitionally recognised association” and must also be satisfied that this association has made progress toward either becoming an organisation or rationalising its internal affairs with those of its federal counterpart. The NUW asserted that, as a consequence of the 14 December 2016 WAIRC decision, 12 the organisation formed as a consequence of the merger between the AWUWA and the FPU was a new organisation which was not transitionally recognised under Schedule 1. The NUW asserted that this new organisation had not applied under clause 2 of Schedule 1 to be transitionally recognised and, because it was registered as a new organisation under the WAIR Act on 14 December 2016, it could not be regarded as having transitionally recognised standing. The NUW asserted that s.72 of the WAIR Act could not purport to transfer transitional recognition to this new association and that, if that section was read in that manner, it would be inconsistent with the operation of s.109 of the Constitution. Accordingly, the NUW asserted that the application must be dismissed.

[11] Finally, in terms of the NUW, which has maintained that it is a “Friend of the Fair Work Commission”, 13 it is appropriate that I observe that, at least in relation to this application, the NUW and the AWUWA are not “friends”. It appears that there are substantial differences between these two unions that go to issues of union coverage with particular reference to persons who are, or may seek to be members of the AWUWA consequent upon its merger with the FPU. The AWUWA has described its relationship with the NUW in this respect as one of “open warfare”.14 Whilst this position has not impacted on my considerations, it is appropriate that I note that I have not regarded the NUW as an impartial friend of the Commission.

[12] The application was the subject of a hearing on 8 March 2017. In this hearing, the AWUWA relied on the Certificate of Registration issued by the WAIRC on 15 December 2016. The AWUWA referred to the limited provisions of the FWRO Act dealing with amalgamations, content of union rules, financial management and elections, and asserted these do not apply to transitionally recognised associations in these circumstances and hence these issues remain regulated by the WAIR Act. Consequently, the AWU WA asserted that:

“12. As a result, there is no reason whatsoever that a written instrument recording the granting of transitional recognition under the Fair Work (Registered Organisations) Act 2009 cannot pass between organisations when an amalgamation occurs in accordance with the WA IR Act.” 15

[13] Further, the AWUWA asserted that it was able to make the application. In this regard it relied upon the provisions of s.78B of the Judiciary Act 1903 and should be regarded as a court for that purpose.

[14] The AWUWA submitted that the objects of the FW Act and the FWRO Act supported its position, to the effect that the AWUWA, in its current form, should be regarded as an association registered under the WAIR Act which was also recognised as an amalgamated organisation consistent with s.72 of the WAIR Act. The AWUWA stated:

“40. The AWU-WA amalgamated under the provisions of the WA IRA and the ‘saving’ provisions of section 72(5) preserved pre-existing rights that had been ‘held by [or] vested in … each of those organisations shall be held by [or] vested in … the new organisation.’ The ‘right’ to be transitionally recognised was in effect transferred to the AWU-WA by virtue of the operation of the WA IRA.

41. There is no constitutional inconsistency here as the federal industrial legislation does not attempt ‘to cover the field’ as it expressly provides that the regulation of employee associations are to be covered by the WA IRA.

42. Further, section 72(5)(c) saves any ‘actions or proceedings already commenced by … any of those organisations may be continued by … the new organisation and the new organisation is substituted for each of those organisations as a party’.

43. The pre-amalgamation AWU-WA had already commenced a ‘proceedings’ in the FWC and had obtained transitional recognition. The WA IRA allows for these proceedings ‘may be continued’. Importantly, the new organisation is substituted for the earlier party/s.” 16

[15] In this regard the AWUWA contended that the application to extend its transitional recognition was simply the continuation of the initial grant of recognition.

[16] Further, the AWUWA contended that because the FWRO Act was silent on the impact of the amalgamation of a state registered organisation, there was no inconsistency between that Act and the WAIR Act so that the AWUWA in the form endorsed by the WAIRC on 14 December 2016, simply replaced the pre-existing association.

[17] In terms of s.72 of the WAIR Act, the AWUWA asserted that this section limited the circumstances under which an amalgamation could occur to situations that did not extend the eligibility rules of the new organisation beyond those of the two amalgamated organisations. The AWUWA asserted that the reference to the cancellation of the registration of the amalgamating organisations, in s.72(5)(a) of the WAIR Act must be read in concert with the remainder of that section such that “all the property, rights, duties, and obligations whatever held by, vested in, or imposed on each of those organisation shall be held by, vested in or imposed on, as the case may be, the new organisation”. 17 The AWUWA asserted that, as, in this instance, both the amalgamating organisations had the right of transitional recognition, the new organisation must be similarly regarded and that either the AWUWA in its pre-December 2016 form, or the FPU, could have sought an extension of the transitional recognition under the FWRO Act such that the AWUWA in its present form was able to make that application. The AWUWA asserted that this approach was consistent with the provisions of s.72(5)(d) of the WAIR Act in that it remained covered by a number of enterprise agreements.

[18] The AWUWA asserted that the propositions espoused by the NUW were inconsistent and that the WAIRC had the jurisdiction to make orders that modified the operation of the transitional recognition, as a consequence of an amalgamation process. The AWUWA relied on s.15AA of the Acts Interpretation Act 1903 in support of its position that the intention and objective of the “transitional recognition provisions’ of the FWRO Act are to enable a state based registered union to access the rights afforded to a “registered organisation” and that this intention supported recognition of its current standing as a transitionally recognised organisation.

[19] In terms of the constitutional impediments argued by the NUW, the AWUWA referred to a number of authorities in support of its position that the WAIR Act imposes an obligation greater than that established under the FWRO Act such that there was neither direct nor indirect inconsistency. The AWUWA position was that the adoption of the approach contended by the NUW would impact on the recognition of the AWUWA for a variety of other purposes, including, but not limited to, tax and superannuation and would result in members of the former FPU being disadvantaged as a consequence of a union amalgamation in a manner encouraged by the FWRO.

Findings

The relevant legislation

[20] Section 72 of the WAIR Act states:
“72 Amalgamated organisations, registration of

(1) Where 2 or more organisations (in this section referred to as the amalgamating organisations) apply for the registration of a new organisation and the rules of the proposed new organisation are such that the only persons eligible for membership of the new organisation will be persons who, if the amalgamating organisations had remained in being, would have been eligible for membership of at least one of the amalgamating organisations, the new organisation may be registered by authority of the Full Bench.

(2) An application under this section shall be made under the respective seals of the amalgamating organisations and shall be signed by the secretary and principal executive officer of each of those organisations.

(3) The provisions of this Division applying to and in relation to the registration of organisations under section 53(1) or 54(1), other than section 55(5), shall apply with such modifications as are necessary, to and in relation to the registration of an organisation under this section.

(4) Subsection (1) does not prevent the alteration, pursuant to this Act, at any time after an organisation has been registered under this section, of the rules referred to in that subsection.

(5) On and from the date on which an organisation is registered under this section —

(a) the registration of each of the amalgamating organisations is cancelled; and

(b) all the property, rights, duties, and obligations whatever held by, vested in, or imposed on each of those organisations shall be held by, vested in, or imposed on, as the case may be, the new organisation; and

(c) actions and other proceedings already commenced by or against any of those organisations may be continued by or against the new organisation and the new organisation is substituted for each of those organisations as a party; and

(d) actions and other proceedings that could have been brought by or against any of those organisations may be brought by or against the new organisation.”

[21] For completeness, I note that s.71 of the WAIR Act states:

“71. State branches of Federal organisations, rules of as to membership and offices

(1) In this section —

Branch means the Western Australian Branch of an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Commonwealth);

counterpart Federal body , in relation to a State organisation, means a Branch the rules of which —

(a) relating to the qualifications of persons for membership; and

(b) prescribing the offices which shall exist within the Branch,

are, or, in accordance with this section, are deemed to be, the same as the rules of the State organisation relating to the corresponding subject matter; and

State organisation means an organisation that is registered under Division 4 of Part II.

(2) The rules of the State organisation and its counterpart Federal body relating to the qualifications of persons for membership are deemed to be the same if, in the opinion of the Full Bench, they are substantially the same.

(3) The Full Bench may form the opinion that the rules referred to in subsection (2) are substantially the same notwithstanding that a person who is —

(a) eligible to be a member of the State organisation is, by reason of his being a member of a particular class of persons, ineligible to be a member of that State organisation’s counterpart Federal body; or

(b) eligible to be a member of the counterpart Federal body is, for the reason referred to in paragraph (a), ineligible to be a member of the State organisation.

(4) The rules of a counterpart Federal body prescribing the offices which shall exist in the Branch are deemed to be the same as the rules of the State organisation prescribing the offices which shall exist in the State organisation if, for every office in the State organisation there is a corresponding office in the Branch.

(5) Where, after the coming into operation of this section —

(a) the rules of a State organisation are altered pursuant to section 62 to provide that each office in the State organisation may, from such time as the committee of management of the State organisation may determine, be held by the person who, in accordance with the rules of the State organisation’s counterpart Federal body, holds the corresponding office in that body; and

(b) the committee of management of the State organisation decides and, in the prescribed manner notifies the Registrar accordingly, that from a date specified in the notification all offices in the State organisation will be filled in accordance with the rule referred to in paragraph (a),

the Registrar shall issue the State organisation with a certificate which declares —

(c) that the provisions of this Act relating to elections for office within a State organisation do not, from the date referred to in paragraph (b), apply in relation to offices in that State organisation; and

(d) that, from that date, the persons holding office in the State organisation in accordance with the rule referred to in paragraph (a) shall, for all purposes, be the officers of the State organisation,

and the certificate has effect according to its tenor.

(6) A State organisation to which a certificate issued under this section applies may, notwithstanding any provision in its rules to the contrary, make an agreement with the organisation of which the State organisation’s counterpart Federal body is the Branch, relating to the management and control of the funds or property, or both, of the State organisation.

(7) Where a memorandum of an agreement referred to in subsection (6) is —

(a) sealed with the respective seals of the State organisation and the other organisation concerned; and

(b) signed on behalf of the State organisation and the other organisation by the persons authorised under their respective rules to execute such an instrument; and

(c) lodged with the Registrar,

the Full Bench may, if it is satisfied that the terms of the agreement are not detrimental to the interests of persons who are eligible to be members of the State organisation and of its counterpart Federal body and will not prevent or hinder the State organisation from satisfying any debt or obligation howsoever arising, approve the agreement.

(8) Where the Full Bench approves an agreement under subsection (7) the Registrar shall —

(a) Register the memorandum as an alteration to the rules of the State organisation; and

(b) amend, where necessary, the certificate issued to the State organisation under subsection (5) by declaring that the State organisation is, from the date of registration of the memorandum, exempted from compliance with such provisions of this Act and to such an extent as the Full Bench may, having regard to the terms of the memorandum, direct; and

(c) notify the State organisation in writing of the matters referred to in paragraphs (a) and (b).

(9) After the issue to a State organisation of a certificate or an amended certificate under this section —

(a) the rule referred to in subsection (5)(a) and a memorandum registered under subsection (8)(a) shall not be altered unless the alteration is approved by the Full Bench; and

(b) an alteration to any rule of the State organisation other than the rule referred to in paragraph (a) may be registered by the Registrar if he is satisfied that the rule as so altered is the same as a rule of the State organisation’s counterpart Federal body; and

(c) every member of the State organisation’s counterpart Federal body who is eligible to be a member of the State organisation shall, for all the purposes of this Act and of any award, industrial agreement or order, be deemed to be a member of the State organisation.

(10) Before granting approval to an alteration of the rule or memorandum referred to in subsection (9)(a), the Full Bench may require compliance by the State organisation with such conditions as the Full Bench considers appropriate.”

[22] The 14 December 2016 decision of the WAIRC 18 approved the amalgamation of the AWUWA and the FPU consistent with the WAIR Act. In doing so, it made the following relevant observations:

“79 An application for amalgamation of two organisations pursuant to s 72 of the IR Act is to create a new organisation with its own rules and is not an amendment, repeal or alteration of rules of an organisation seeking to amalgamate with another or other organisations. An amendment, repeal or alteration of rules contemplates a change of the rules of an organisation that continues to exist. However, on and from the registration of the new organisation the registration of each amalgamating organisation is cancelled pursuant to s 72(5) of the IR Act. It follows therefore, on cancellation, the rules of each amalgamating organisation cease to exist by operation of law.

…

122 We are satisfied that the name of the proposed organisation does not contravene s 59 of the Ir Act. Section 59 provides that the Full Bench shall not authorise the registration of an organisation under a name identical with that by which any other organisation has been registered or which by reason of its resemblance to the name of another organisation or body or for any other reason is, in the opinion of the Full Bench, likely to deceive or mislead any person. Although the proposed organisation will bear the same name as the AWUWA, once registered, the AWUWA in its current form will cease to exist so no issue will arise about registration of an organisation under a name that is identical by which any other organisation has been registered.

…

124 For these reasons, we are of the opinion that the Full Bench should authorise the Registrar to register the new organisation. …” 19

[23] Consequently, there can be no doubt that s.72 of the WAIR Act and the 14 December 2016 decision of the WAIRC establish that the AWUWA in its present form, is a new organisation and the pre-14 December 2016 AWUWA and the former FPU have ceased to exist.

[24] The operation of Schedule 1 of the FWRO Act must be considered in this context. At the time that Transitional Registration of the AWUWA was granted in June 2006, the then Schedule 10 differed in a number of respects. The Explanatory Memorandum dealing with the precursor to Schedule 10 of the WR Act reflects the recognition given to registered associations under the legislation at that time in the following terms:

“3736. A transitionally registered association would have three years to become fully registered under Schedule 1B. During that period, its activities would continue to be governed by its State registration regime and not Schedule 1B. However, it would be given the same rights and obligations as a registered organisation has under the WR Act. For example, it would be able to enter into collective agreements, apply for right of entry permits, and engage in protected industrial action.”

[25] While the current provisions largely replicate Schedule 10 of the WR Act, there are some substantial differences. The concept of “registration” was replaced by “recognition” in amendments made to this Schedule in 2009. 20 I have not attached any significance to this change because, apart from changes I have set out below, the concepts appear largely interchangeable.

[26] An essential qualification for transitional registration or recognition, being that the association must be a “State-registered association” has not changed. The definition of a “State-registered association” in Schedule 1 is:

“State ‑registered association means a body that is:

(a) an industrial organisation for the purposes of the Industrial Relations Act 1996 of New South Wales; or

(b) an organisation for the purposes of Chapter 12 of the Industrial Relations Act 1999 of Queensland; or

(c) an association or organisation for the purposes of the Industrial Relations Act 1979 of Western Australia; or

(d) a registered association for the purposes of the Fair Work Act 1994 of South Australia; or

(e) an organization for the purposes of the Industrial Relations Act 1984 of Tasmania.

(2) Unless the contrary intention appears, the following terms have the meaning they would have for the purposes of the Workplace Relations Act 1996 on the reform commencement:

(a) employee;

(b) employer;

(c) employment;

(d) State or Territory industrial law.”

[27] A further change in this current Schedule relates to clause 3(2). For clarity, I have recited the entirety of this clause.

“3 Application of the Fair Work Act to transitionally recognised associations

(1) The provisions of the Fair Work Act and Part 3 of Chapter 4 of the Fair Work (Registered Organisations) Act 2009 apply, on and after the commencement of those provisions, in relation to a transitionally recognised association:

(a) in the same way as they apply in relation to an organisation; and

(b) as if a transitionally recognised association were a person.

(2) To avoid doubt, this section does not confer on a transitionally recognised association:

(a) a legal identity that it would not otherwise have; or

(b) a right to represent its members’ industrial interests outside the State in relation to which it is a State‑registered association.”

[28] Schedule 10 of the WR Act and Schedule 1 of the FWRO Act similarly provide for the cancellation of registration or recognition consequent upon a conclusion that the association was registered by mistake or, is no longer a State registered association. Both the former and the current Schedules provide for cancellation in the event that the association no longer exists. It is also worth noting that, at the time transitional registration was granted, that registration came to an end when either it was cancelled, the association became an organisation for the purposes of the WR Act or, in any other case three years after Schedule 10 commenced, namely in 2009. The current Schedule reflects significant extensions to that initial conclusion arrangement.

[29] The provisions of clause 6(2) establish a discretion available to the Commission to extend the end date of transitional recognition which is dependent on two findings of jurisdictional fact. Firstly, the Commission must be satisfied that an application for an extension was made by a transitionally recognised Association. Secondly, the Commission must be satisfied that association has made further progress toward either becoming an organisation or rationalising its internal affairs with those of its federal counterpart.

Was the AWUWA a transitionally recognised Association at the time at which it made this application?

[30] The 14 December 2016 WAIRC decision 21 terminated the AWUWA and the FPU as they existed up to that time22 and registered a new association. As a consequence, the transitional recognition of both those pre-14 December 2016 associations was capable of being cancelled pursuant to clause 5(5)(ii) or clause 5(6) of Schedule 1 of the FWRO which relevantly states:

“(5) The FWC may cancel the recognition under this Schedule of a transitionally recognised association:

(a) on application by the association made under the regulations; or

(b) on application by a person interested or by the Minister, if the FWC has satisfied itself, as prescribed, that the association:

(i) was recognised by mistake; or

(ii) is no longer a State‑registered association.

Cancellation by General Manager

(6) The General Manager may, by written instrument, cancel the recognition under this Schedule of a transitionally recognised association if he or she is satisfied that the association no longer exists.”

[31] Notwithstanding the apparent capacity to do so, there was no cancellation of the transitional recognition of either the pre-14 December 2016 AWUWA or the former FPU consistent with these provisions of the Schedule.

[32] Irrespective of that, this application was brought by the AWUWA in its post-14 December 2016 form. That new association could only be regarded as a transitionally recognised Association if either it achieved transitional recognition in its own right, or, it preserved the transitional recognition given to either or both the AWUWA and/or the FPU.

[33] There is no question that the AWUWA as it exists subsequent to 14 December 2016, has not achieved transitional recognition in its own right. The contentious preservation of the pre-existing transitional recognition relies on the provisions of s.72 of the WAIR Act in the context of the constitutional limitations on state legislation.

[34] To the extent that the AWUWA asserts that there is some form of impediment on the Commission pursuant to s.78B of the Judicial Act 1903 so as to limit its consideration of those issues, I have considered that section, which states:

“JUDICIARY ACT 1903 - SECT 78B

Notice to Attorneys-General

(1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

(2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:

(a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;

(b) may direct a party to give notice in accordance with that subsection; and

(c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.

(3) For the purposes of subsection (1), a notice in respect of a cause:

(a) shall be taken to have been given to an Attorney-General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General; and

(b) is not required to be given to the Attorney-General of the Commonwealth if he or she or the Commonwealth is a party to the cause and is not required to be given to the Attorney-General of a State if he or she or the State is a party to the cause.

(4) The Attorney-General may authorize the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a cause by reason of this section.

(5) Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.”

[35] I consider that this is not a matter which relates to current considerations of Courts in either the Federal or State jurisdictions. To the extent that the AWUWA is suggesting that the Commission should regard itself as a Court, this too cannot be accepted. In Smith & Others v Trolloppe Silverwood & Beck Pty Ltd (In Liquidation) 23 a Full Bench of the Australian Industrial Relations Commission addressed the standing of the Commission in the context of considerations under the Corporations Act:

“[8] As indicated, pursuant to s.9 of the Corporations Act "court" has the meaning it bears in s.58AA of the same Act unless the contrary intention appears. The first question is, therefore, what meaning does the term "court" bear in s.58AA?

[9] It seems clear that in s.58AA, the terms of which we have just set out, "court" means a body capable of being invested with the judicial power of the Commonwealth. In other words, the term is confined in meaning to Federal and State courts. This conclusion arises primarily from the terms of s.58AA(2). Proceedings in relation to a matter under the Act would require to be brought in a curial body exercising judicial power. It is beyond argument that the Commission is not a body capable of exercising the judicial power of the Commonwealth: R v Kirby; Ex parte Boilermakers' Society of Australia;2 Miller v University of New South Wales.3 If the term "court" is to be given its defined meaning it excludes the Commission. Therefore the Commission is not a court within the definition of that term in s.9. This was the conclusion reached by a justice of the Federal Court of Australia in Australian Liquor, Hospitality and Miscellaneous Workers Union v Home Care Transport Pty Ltd.4 We respectfully agree.

[10] It follows from the terms of s.9 that the expression "any court" in s.471B includes only courts capable of exercising the judicial power of the Commonwealth, unless the contrary intention appears. Does an intention appear, either in s.471B itself or from the statutory context, that in s.471B "court" includes the Commission?

[11] In Home Care, Merkel J found that while the Commission, not being capable of being invested with the judicial power of the Commonwealth, is not a court as defined in s.9 of the Corporations Act nevertheless, as provided for in s.9, a contrary intention appears in s.471B. That intention is that in s.471B the term "court" should include non-judicial bodies such as the Commission.”

[36] I have adopted this approach such that, in straightforward terms s.78B of the Judicial Act does not operate so as to inhibit the Commission from considering the standing of state-based legislation in the context of constitutional limitations. Furthermore, I consider that there is a positive obligation on the Commission to ensure that it acts within its jurisdiction.

[37] The AWUWA assertion that the provisions of s.72(5)(b) of the WAIR Act must be read so as to transfer the transitional recognition status of the AWUWA as it existed prior to 14 December 2016, and the FPU, to the new organisation, requires firstly, that this transitional recognition can be characterised as either property, a right, a duty or an obligation. In this regard it cannot be regarded as a property, a duty or obligation. It is not something that can be traded, nor is it a characteristic that the AWUWA is obliged to maintain. The issue is then one of whether that transitional recognition represents a right held by, or vested in, the two pre-14 December 2016 organisations.

[38] I have concluded that transitional recognition may be regarded as a right to participate in the legislative scheme established by the FW Act. In the context of the current FW Act those representation rights are set out in clause 4 of Schedule 1 of the FWRO Act which states:

“4 Representation rights of transitionally recognised associations of employees

(1) Regulations made for the purposes of this subclause may make provision for the FWC to make orders in relation to the right of a transitionally recognised association to represent the interests under the Fair Work Act, on and after the commencement of provisions of that Act, of a particular class or group of employees.

(2) Without limiting subclause (1), the regulations may specify the weight that the FWC is to give, in making such an order, to a State demarcation order.”

[39] This, however, then exposes the question of whether s.72 of the WAIR Act is able to prescribe that the rights which the pre-14 December 2016 AWUWA and the former FPU had are preserved and, in effect, then conferred on the new AWUWA. This raises the issue of the constitutional validity of any such provision. To the extent that s.72, or any other provision of the WAIR Act is inconsistent with the provisions of the FWRO Act, s.109 of the Constitution operates so as to favour the FWRO Act.

[40] If transitional recognition is taken to be a right attaching to the pre-14 December 2016 AWUWA and the former FPU and s.72(5)(b) is applied so as to confer those rights on the post-14 December 2016 AWUWA, then that post-14 December 2016 AWUWA is accorded transitional recognition status without further consideration of the preconditions for that recognition under Schedule 1 of the FWRO Act. Such an approach appears inherently inconsistent with the provisions of that Schedule which relate to the achievement of transitional recognition. Clause 2 establishes that a State-registered association may apply for transitional recognition provided it had, before the commencement of the Schedule, at least one member who was an employee whose employment was subject to a State award, a State employment agreement or a State or Territory industrial law. 24 The post-14 December 2014 AWUWA could not, by definition, have met that requirement. Additionally, a State-registered association is also able to apply for transitional recognition pursuant to clause 2(1A) if it meets the requirements specified in that clause and the application is made before 5 December 2017. Because that time has not yet expired, I have not further commented on this mechanism to achieve transitional recognition. However, it is clear that an application for transitional recognition must be accompanied by:

● evidence to establish the basis upon which the application is made,
● a copy of the current rules of the association, and
● address and officeholder details.

[41] Whilst Schedule 1 of the FWRO Act does not specify objects, the Explanatory Memorandum dealing with the Workplace Relations Amendment (Work Choices) Bill 2005, which dealt with a precursor to this Schedule, is informative in the following terms:

“3735. The Schedule would allow State registered employer and employee associations who have rights under State industrial laws to represent members who are moving into the federal system to gain transitional registration status under the WR Act and thereby retain their right to represent those members.”

[42] Further, it is transparently clear from the provisions of clause 6 of Schedule 1, under which this application is made, that there are only two grounds upon which an extension of the automatic sunset provisions can be made. These relate to the Commission being satisfied that the association has either made further progress towards becoming an organisation, or rationalising its internal affairs with those of its federal counterpart. In this context, it is apparent that the Commission will need to consider both the basis upon which any new application for transitional recognition is made and the extent to which the association’s rules and structure are consistent with either an association which is seeking to be an organisation under the FWRO Act or an association which is progressing toward rationalisation of its affairs with its federal counterpart. In either circumstance, I do not consider that conferring transitional recognition rights on the post-14 December 2016 AWUWA without the capacity for the Commission to consider whether that recognition is appropriate, is consistent with the obligations established under Schedule 1. The facts of the merger between the AWUWA and the FPU are that two State registered associations both held transitional recognition rights but held these rights on quite different foundations, in that the AWUWA had the Australian Workers Union (the AWU) as its federal counterpart, whilst the FPU did not have a corresponding federal counterpart. Consequently, to the extent that s.72 of the WAIR Act purports to transfer the transitional recognition rights without permitting or requiring the Commission to consider an application pursuant to clause 2 of Schedule 1, that transfer must be regarded as inconsistent with the provisions of the FWRO Act.

[43] That conclusion may be argued to be inconsistent with the long-standing objective of rationalising the number of organisations. In this respect I note that neither the FW Act nor the FWRO Act makes such an objective explicit. Notwithstanding this, I acknowledge that there may be practical benefits to members of the pre-14 December 2016 AWU WA and the former FPU, that arise from the amalgamation of these two associations. However, any such merger should have anticipated consideration of its effect on the pre-existing transitional recognition.

[44] This decision need not, and does not, require a conclusion about the capacity of the AWUWA, or, for that matter the AWU, or any other union to represent the interests of their members. It is simply confined to consideration of the application for an extension of transitional recognition.

[45] Further, I note that the AWUWA argues that a consequence of a conclusion of this nature to other legislation, dealing with matters such as taxation and superannuation obligations. I do not consider it necessary to address those matters. It seems to me that those issues need to be considered in the context of the legislation which governs those obligations. I have reached a very specific conclusion to the effect that the AWUWA was not, at the time that this application was made, a transitionally recognised Association and hence, was unable to make an application for extension of that transitional recognition.

[46] The application must be dismissed on this basis.

[47] A further observation is appropriate. Even if I had determined that the jurisdiction to consider this application existed, I am not satisfied that the post-14 December 2016 AWUWA meets the requirements in clause 6(2) which are necessary for an extension of that transitional recognition standing. This is because I am not satisfied that the AWUWA has made sufficient progress towards becoming an organisation. Particularly, I cannot be satisfied that the AWU has been established to be the federal counterpart in the extant circumstances where the pre-14 December 2016 AWUWA made a decision to amalgamate with the FPU, and to adopt new rules which differ from those which currently apply to the AWU. In expressing this concern, I have noted the advice that the AWU is seeking to amend its rules in this respect but it seems to me that the provisions of clause 6(2)(b) direct attention to the state recognised Association as the entity which is required to demonstrate that it is the entity rationalising its internal affairs with those of its federal counterpart, rather than the reverse situation. Consequently, on the information before me, even if I had been satisfied as to the jurisdiction to consider the application, it must have failed on the application of the test in clause 6(2) of Schedule 1 of the FWRO Act.

[48] An Order (PR590969) dismissing the application will be issued consistent with this decision.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR590966>

Appearances:

C Young for the AWUWA.

Hearing details:

2016.

Adelaide (and Video-link to Perth):

February 28.

 1   [2016] FWC 9241

 2   PR972795, R2006/151

 3 R2015/154

 4   [2016] FWCG 1822

 5   PR985867

 6   2016 WAIRC 00932

 7   2016 WAIRC 00947

 8   2016 WAIRC 00932

 9   Correspondence dated 2 February 2017 from C Fogliani, counsel for NUW, second to last para

 10   Exhibit NUW1, 28 February 2017

 11   Exhibit NUW2

 12   2016 WAIRC 00932

 13   Exhibit NUW2

 14   Transcript, 8 March 2017

 15   Exhibit AWU2, para 12

 16   Exhibit AWU2, paras 40-43

 17   WAIR Act, s.72

 18   2016 WAIRC 00966

 19   2016 WAIRC 00966, paras 79, 122 and 124 (in part)

 20   see Act 55 of 2009

 21   2016 WAIRC 00932

 22   2016 WAIRC 00932, para 122

 23   PR940508, 17 November 2003

 24 Clause 2, Schedule 1, FWRO Act