Building Service Contractors' Association of Australia - Queensland Division, Industrial Organisation of Employers
[2011] FWA 8104
•29 NOVEMBER 2011
[2011] FWA 8104 |
|
DECISION |
Fair Work (Registered Organisations) Act 2009
s.18(a) RO Act - Application for registration by an association of employers
Building Service Contractors' Association of Australia - Queensland Division, Industrial Organisation of Employers
(D2010/5023)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 29 NOVEMBER 2011 |
Summary - application for federal registration - various objections - transitionally registered association exempted from conveniently belong test - RO Regulations.
[1] This is an application by the Building Service Contractors' Association of Australia - Queensland Division, Industrial Organisation of Employers (“the Applicant”) for federal registration under the Fair Work (Registered Organisations) Act 2009 (“the RO Act”).
[2] The Applicant is a Transitionally Registered Association (“TRA”) under Schedule 1 of the RO Act and as such has no federal counterpart that is registered under the RO Act. The Applicant’s rules at the time of the registration proceedings are registered under the Industrial Relations Act 1999 (Qld).
[3] The application complied with the requirements stipulated in Regulation 21(1)(b) - (d) of the Fair Work Act (Registered Organisations) Regulations 2009 (“the RO Regulations”).
[4] The application was made in the appropriate manner (under Form F55) for the purposes of Regulation 21(1)(a) of the RO Regulations and was gazetted (GN49 on 15 December 2010) in accordance with Regulation 22 of the RO Regulations.
[5] Objections were received from two organisations: the Traffic Management Association of Queensland (“the TMAQ”); and the Australian Security Industry Association Limited (“the ASIAL”) (collectively, “the Objectors”). The status of ASIAL as an Objector was amended very late in the proceedings in relation to this application, and I have noted this below.
[6] These objections were lodged in accordance with Regulation 23 of the RO Regulations.
[7] In order to become a registered organisation under the RO Act, an association must meet various statutory conditions. The relevant statutory conditions are set out at s.18 of the RO Act, which reads as follows:
Division 1—Types of associations that may apply for registration
18 Employer and employee associations may apply
Any of the following associations may apply for registration as an organisation:
(a) a federally registrable association of employers;
(b) a federally registrable association of employees;
(c) a federally registrable enterprise association.
18A Federally registrable employer associations
(1) An association of employers is federally registrable if:
(a) it is a constitutional corporation; or
(b) some or all of its members are federal system employers.
(3) An association of employers is not federally registrable if it has a member who is not one of the following:
(a) an employer;
(b) a person who was an employer when admitted to membership, but who has not resigned or whose membership has not been terminated;
(c) a person (other than an employee) who carries on business;
(d) an officer of the association.
(4) An association of employers is not federally registrable if:
(a) it is only a body corporate because it is or has been registered under this Act (whether before or after the commencement of this subsection); and
(b) it is not the case that some or all of the association’s members are federal system employers.
[...]
18D Constitutional validity
Associations of employers
(1) If the Parliament would not have sufficient legislative power to provide for the registration of a particular association of employers if:
(a) a particular class of employers mentioned in paragraphs (a) to (f) of the definition of national system employer in section 14 of the Fair Work Act were included when working out whether some or all of the association’s members are federal system employers;
that definition applies as if it did not include a reference to that class of employers.
(2) If the Parliament would only have sufficient legislative power to provide for the registration of a particular association of employers if the membership of the association were entirely made up of one or more of the following:
(a) federal system employers;
(b) persons (other than employees) who carry on business and who would, if they were employers, be federal system employers;
(c) officers of the association;
then, despite subsection 18A(1), the association is not federally registrable unless it is either a constitutional corporation or made up in that way.
[...]
[8] There is no contest by either of the Objectors that the Applicant has the appropriate identity, nor is any contrary conclusion discernible on the materials available to me.
[9] With these statutory requirements fulfilled, an application must further meet the requirements of s.19 of the RO Act, which reads as follows:
19 Criteria for registration of associations other than enterprise associations
(1) FWA must grant an application for registration made by an association (other than an enterprise association) that, under section 18, may apply for registration as an organisation if, and only if:
(a) the association:
(i) is a genuine association of a kind referred to in paragraph 18(a) or (b); and
(ii) is an association for furthering or protecting the interests of its members; and
(b) in the case of an association of employees—the association is free from control by, or improper influence from, an employer or by an association or organisation of employers; and
(c) in the case of an association of employers—the members who are employers have, in the aggregate, throughout the 6 months before the application, employed on an average taken per month at least 50 employees; and
(d) in the case of an association of employees—the association has at least 50 members who are employees; and
(e) FWA is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Act and the Fair Work Act; and
(f) the rules of the association make provision as required by this Act to be made by the rules of organisations; and
(g) the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and
(h) a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation; and
(i) the registration of the association would further Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act; and
(j) subject to subsection (2), there is no organisation to which members of the association might belong or, if there is such an organisation, it is not an organisation:
(i) to which the members of the association could more conveniently belong; and
(ii) that would more effectively represent those members.
(2) If:
(a) there is an organisation to which the members of the association might belong; and
(b) the members of the association could more conveniently belong to the organisation; and
(c) the organisation would more effectively represent those members than the association would;
the requirements of paragraph (1)(j) are taken to have been met if FWA accepts an undertaking from the association that FWA considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the organisation and the eligibility rules of the association.
(3) Without limiting the matters that FWA may take into account in considering, under subparagraph (1)(j)(ii), the effectiveness of the representation of an organisation or association, FWA must take into account whether the representation would be consistent with Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act.
(4) In applying paragraph (1)(e), FWA must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under section 28 had the association been registered when the conduct occurred.
(5) FWA must not, under this section, grant an application for registration of an association of employers or employees registered under a State or Territory industrial law if the association has a federal counterpart.
[10] The Objectors do not contest the application other than on the following grounds. Other than these grounds, which I will determine as I go along, the Objectors are of the view that the application meets the requirements of s.19 of the RO Act. The materials before me also demonstrate this same position.
Objections by the Traffic Management Association of Queensland (TMAQ)
[11] It was contended by the TMAQ that the Applicant had not conformed with the requirement of s.19(h) of the RO Act in so far as there was no evidence that a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, had passed, under the rules of the association, a resolution in favour of registration of the association as an organisation
[12] The application was accompanied by a statutory declaration sworn by Mr Brian Ellem, President of the Applicant, that attested to an excerpt from the minutes of the General Executive Meeting held on 19 March 2009, that resolved that the Applicant “be registered as an industrial association under the AIRC.” The declaration was also for the purpose of attesting that such a resolution was passed in accordance with the rules of the Applicant. The excerpt from the Minutes was supported by a copy of the signed Minutes of the 19 March 2009 meeting, which was handed up as a result of the proceedings.
[13] There seems to me to be no argument that the requirements of s.19(h) of the RO Act have been met. The resolution or motion lacks felicity (referring to the State-based notion of an “association” rather than a federally registered “organisation”), but this is not fatal to the application and is likely only to reflect the nomenclature of the Applicant's current origin as a State Division of a national (though un-registered) entity and not a confusion of any other order. The motion was also “moved”, “seconded” and “carried” by the General Executive Meeting in accordance with the procedures set down in the rules. The requirement of s.19(h) of the RO Act has been met.
[14] The next objection focused on a claim that the manner of notifying the tribunal of industrial disputes would be onerous or impose an unreasonable burden or hardship upon a member of the Applicant.
[15] This claim has no merit.
[16] Rule 40 of the Applicant’s rules specify the manner in which the tribunal is notified of industrial disputes. They are notified only after a determination is made by the Board of the Applicant in accordance with Rule 21 of the Applicant’s rules, and on the basis of a simple majority. There seems to be little in such a procedure that could be described as a burden to an employer who has elected to assume membership of the association.
[17] The next objection was that the Applicant has not supplied a list of offices in the association or of those within any branches of the association. The focus appears to have been the latter part of the objection, particularly as the list of offices in the association are known.
[18] The answer to this objection has been a matter of record for some time, and that is that the Applicant has no such branches. The objection must fail.
Objections by the Australian Security Industry Association Limited (ASIAL)
[19] As with the above objector, the ASIAL raised a range of objections at the outset. But with further discussion and amendments to the rules as they were at the time the application was made, a number of these have fallen away.
[20] The first of the remaining objections raised by ASIAL was that the Applicant could not succeed because it could not meet the test set out at s.19(j) of the RO Act (as cited above).
[21] Item 1.12 of Part 3 of Schedule 1 to the RO Regulations establishes that s.19(1)(j) of the RO Act does not apply to a TRA. The relevant provision reads as follows:
1.12 Provisions not to apply [to a Transitionally Registered Association]
The following provisions of section 19 of the Act are taken not to apply to the association:
(a) paragraph 19 (1)(j);
(b) subsection 19 (2);
(c) subsection 19 (3).
[22] The objection cannot succeed.
[23] The second objection was that the eligibility rule set out in the Applicant's rules did not satisfy s.141(a) and s.5 of the RO Act. This was because Part B, rule 4 of the Applicant's rules lacked specificity and definition. The Applicant's eligibility rule in full reads as follows:
4. MEMBERS
4.1 The members of the Association with the exception of life members shall consist of companies, businesses or persons who employ labour in the business, industry or callings of security, traffic control cleaning and building services contractors, including consultants actively operating in the cleaning, security, traffic control and building services industry in Queensland.
4.1.1 the Executive Committee may resolve to appoint an individual as a Life Member in recognition of their distinguished service to or for the Association.
4.1.2 Life Members have all the rights, privileges and responsibilities of ordinary members (and are subject to discipline in accordance with clause 10 of these Rules).
4.2 Every application for membership shall be in writing signed by or on behalf of the applicant and shall be lodged at the registered office.
4.3 All applicants for membership must be informed in writing by the Association of:
4.3.1 the financial obligations arising from memberships; and
4.3.2 the circumstances, and the manner, in which a member may resign from the Association.
4.4 At the next Executive Committee meeting after the lodgment of an application for membership the Executive Committee shall either admit the applicant as a member, reject the application or hold an applicant’s nomination for further consideration.
4.5 If and when the Executive Committee shall admit any applicant to membership the applicant shall become a member of the Association upon paying the fees as determined by the Executive Committee in accordance with these Rules.
[24] It appears to me that the terms “security, traffic control cleaning and building services contractors” are of common industrial usage and in some cases appear as terms denoting application and coverage in modern awards. There is no useful purpose served by deconstructing them, or subjecting them to further sub categorisation.
[25] Finally, the ASIAL objected initially to the Applicant's registration because the name of the association was similar to that of an existing entity. The objection is a reference to the requirement of s.19(1)(g) of the RO Act (as cited above).
[26] The concern was that the Applicant's name was the similar to that of the Building Services Contractors Association of Australia, New South Wales.
[27] This entity is “sister” entity to that of the Applicant. It has not itself objected to the Applicant's registration, which is perhaps not unusual.
[28] Further, as cited above, the Applicant's eligibility rule is restricted to the State of Queensland. This is reflected in its title. There can be little reasonable argument that an entity which is expressly geo-politically defined would in ordinary circumstances give rise to or cause confusion in relation to another entity with a distinguishable geo-political reference in its title.
[29] This objection must fail.
[30] As it was, upon the Applicant putting its submissions in relation to these matters and the issues being aired in hearing, the ASIAL ultimately, after the hearing process itself had concluded, withdrew its objections to the application for registration. The objections are considered above for reasons of completeness.
CONCLUSION
[31] Section 19(1) of the RO Act requires that FWA must approve the registration of an association as an organisation under the RO Act “if and only if” it meets all the preconditions stipulated in the section.
[32] For the reasons given above, I have found that the applicant association has in each instance met the requirements of s.19(1) of the RO Act, as well as the requirements of the RO Regulations.
[33] I must therefore grant the application of the association, being the Building Service Contractors' Association of Australia - Queensland Division, Industrial Organisation of Employers (the name of the association under Rule 1 of the Applicant’s rules), for registration as an organisation under the RO Act.
[34] The Building Service Contractors' Association of Australia - Queensland Division, Industrial Organisation of Employers will be registered as an organisation under the RO Act and have status as such from Wednesday, 7 December 2011.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr C. Pollard for the Applicant
Mr. L. Fraser for the Traffic Management Association of Queensland
Mr. C. Delaney for the Australian Security Industry Association Limited
Hearing details:
2011
4 November
Brisbane
Final written submissions:
2011
17 November
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