"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

[2017] FWC 1092

[2017] FWC 1092

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act - Application for alteration of eligibility rules

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(D2016/60)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 24 FEBRUARY 2017

Application for alteration of eligibility rules.

[1] This decision concerns an application made under s.158(1) of the Fair Work (Registered Organisations) Act 2009 (the RO Act) by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for consent to the alteration to its eligibility rules.

[2] The application was signed by the AMWU’s National Secretary Mr Paul Bastian on 19 September 2016 and lodged on 20 September 2016.

[3] The application was accompanied by a Statutory Declaration by Mr Bastian to the effect that the alteration was endorsed by the AMWU’s National Council on 28 July 2016.

[4] The proposed alteration is to Rule 1 Name Objects and Constitution by adding the following paragraph to Rule 1J:

“And further, without in any way limiting and without in any way being limited by the remainder of these rules, the Union shall also consist of independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the Union.”

[5] The effect of the alteration is to provide for unambiguous coverage of the AMWU of independent contractors who are performing work which would otherwise be covered by the AMWU’s eligibility rules.

[6] The addition to the rules expands the coverage of the AMWU to independent contractors performing work covered by all the other aspects of Rule 1.

[7] The application was gazetted in the Commonwealth of Australia Gazette on 4 October 2016 and also published on the Fair Work Commission’s website. The AMWU also published a notice on its website.

[8] One objection was lodged by the Transport Workers Union of Australia (TWU) on 8 November 2016. (TWU)

[9] Section 158 of the RO Act relevantly provides:

“158  Change of name or alteration of eligibility rules of organisation

(1)  A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:

(a)  in the case of a change in the name of the organisation—the FWC consents to the change under this section; or

(b)  in the case of an alteration of the eligibility rules of the organisation:

(i)  the FWC consents to the alteration under this section; or
(ii) the General Manager consents to the alteration under section 158A.

2)  The FWC may consent to a change or alteration in whole or part, but must not consent unless the FWC is satisfied that the change or alteration has been made under the rules of the organisation.

(3)  The FWC must not consent to a change in the name of an organisation unless the FWC is satisfied that the proposed new name of the organisation:

(a)  is not the same as the name of another organisation; and

(b)  is not so similar to the name of another organisation as to be likely to cause confusion.

(4)  The FWC must not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the FWC, another organisation:

(a)  to which those persons could more conveniently belong; and

(b)  that would more effectively represent those members.

(5)  However, subsection (4) does not apply if the FWC accepts an undertaking from the organisation seeking the alteration that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.

(6) The FWC may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of persons.

(7)  The FWC may also refuse to consent to an alteration of the eligibility rules of an organisation if it:

(a) is satisfied that the alteration would change the effect of any order made by the FWC under section 133 about the right of the organisation to represent under this Act and the Fair Work Actthe industrial interests of a particular class or group of employees; and

(b)  considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.

(8)  Subsections (6) and (7) do not limit the grounds on which the FWC may refuse to consent to an alteration of the eligibility rules of an organisation.

(9)  Where the FWC consents, under subsection (1), to a change or alteration, the change or alteration takes effect on:

(a)  where a date is specified in the consent—that date; or

(b)  in any other case—the day of the consent.

(10)  This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:

(a)  determined by the FWC under subsection 163(7); or

(b)  proposed to be made for the purposes of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or

(c)  proposed to be made for the purposes of a withdrawal from amalgamation under Part 3 of Chapter 3.”

[10] I also note that s.141(2) also provides:

“141  Rules of organisations
. . .
(2)  The rules of an organisation of employees may include provision for the eligibility for membership of the organisation of independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for membership of the organisation.”

[11] The matter was heard on 25 November 2016. Ms L. Saunders appeared for the AMWU. Ms W. Carr appeared for the TWU. It was adjourned to facilitate discussions aimed at settling the objection.

[12] There was a report back hearing on 13 December 2016 at which I was advised that settlement in principle had been reached and that the Commission would be advised once a deed had been formally executed.

[13] On 6 February 2017 my chambers was provided with a Memorandum of Understanding which has been executed by the National Secretaries of the AMWU and TWU. A copy of the Memorandum has been placed on the Commission’s file.

[14] In accordance with the Memorandum I note that the AMWU has provided the following undertaking to the Commission:

“The AMWU undertake to take all reasonable steps to avoid demarcation disputes that might otherwise arise from any overlap in the eligibility rules of the AMWU and the TWU. In particular, the AMWU will not raise any objection to the TWU lawfully participating in industrial matters or otherwise representing the industrial interests of workers covered by New Rule 1J.”

[15] Accordingly, the TWU’s objection is withdrawn.

[16] Having considered the material filed in support of this application and the withdrawal of the only objection, I am satisfied that there has been compliance with the requirements of the RO Act and the regulations.

[17] I am also satisfied that:

1. The change has been made under the rules of the organisation (s.158(2)); and

2. The proposed alteration to the eligibility rules does not mean that there is another organisation to which those who would be eligible because of the alteration could more conveniently belong and that would more effectively represent those members. (s.158(4))

[18] I therefore consent to the changes to the eligibility rules sought by the AMWU.

[19] The change to the eligibility rules of the organisation will take effect seven (7) days after the date of this decision.

DEPUTY PRESIDENT

Appearances:

L. Saunders for the AMWU;

W. Carr for the TWU.

Hearing details:

2016

Sydney:

November 25;

December 13.

Printed by authority of the Commonwealth Government Printer

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