Consult Australia [Industrial]

[2014] FWC 2660

[2014] FWC 2660

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.18(a) RO Act - Application for registration by an association of employers

Consult Australia [Industrial]
(D2013/121)

DEPUTY PRESIDENT LAWRENCE SYDNEY,28 APRIL 2014

Application for registration by an association of employers.

[1] On 26 July 2013 an application was lodged in the Fair Work Commission (the Commission) to register Consult Australia [Industrial] (the Applicant) as an organisation pursuant to s.18(a) of the Fair Work (Registered Organisations) Act 2009 (the RO Act).

[2] The application was notified by publication in the Commonwealth Gazette on 19 August 2013.

Objections

[3] The following notices of objection were filed:

Name	Date
(a)	Master Plumbers and Mechanical Services Association of Australia	26 August 2013
(b)	National Electrical Contractors Association	12 September 2013
(c)	Master Builders Association of New South Wales (‘MBANSW’)	23 September 2013
Master Builders Association of Northern Territory (‘MBANT’)	23 September 2013
Master Builders Association of South Australia (‘MBASAI’)	23 September 2013
Master Builders Association of Tasmania Inc (‘MBAT’)	23 September 2013
Master Builders Association of Victoria (‘MBAV’)	23 September 2013
Master Builders Construction and Housing Association of Australia Capital Territory (‘MBCHAACT’)	23 September 2013
Queensland Master Builders Association, Industrial Organisation of Employers (‘QMBA’)	23 September 2013

[4] The Master Builders Australia Ltd lodged a Form 53 Notice of Representative Commencing to Act on behalf of the “MBAs” named above on 23 September 2013.

[5] The objectors listed in [3] and [4] above are referred to as “the Objectors” in this decision.

[6] The Applicant filed written replies to the objections on 4 October 2013 and 8 October 2013.

[7] Mr Calver of Master Builders Australia Ltd filed a written submission on 9 October 2013 going to the objection lodged by the “MBAs” and in support of his application to represent them.

[8] The application was heard by me on 16 October 2013. The Applicant was represented by Mr P. Punch of Carroll & O’Dea Lawyers. The Objectors were represented by Mr R. Calver for the “MBAs”, Mr K. McCosh for National Electrical and Communications Association (NECA) and Ms S. Kramer for the Master Plumbers, Mr G. Jervis represented NECA in subsequent hearings.

[9] The matter was adjourned for the Applicant and Objectors to confer.

[10] A further hearing took place on 17 December 2013. I was advised that the objections had not been settled. The objections related to the alleged uncertainty and breadth of the Applicant’s proposed conditions of eligibility. At the request of the parties I chaired a conference to seek to narrow the differences on 17 December 2013.

[11] A revised “Conditions of Eligibility” was sent by Mr Punch to the Objectors in January 2014 which led to discussions between the parties.

[12] At the further hearing on 5 March 2014, I was advised that the NECA and Master Plumbers objections were withdrawn on agreed terms. The matter was adjourned to allow further consideration of the MBA objection by the Applicant.

[13] On 2 April 2014 the Applicant filed an application pursuant to s.25 of the RO Act seeking to amend its rules filed in the Commission. The amendments relate to the “Conditions of Eligibility” rule and other amendments required by the Regulation and Compliance Branch of the Fair Work Commission to comply with the RO Act. The application contained a Statutory Declaration from the Interim President of the Applicant setting out the Applicant’s compliance with its rules in deciding to make these amendments.

[14] At the further hearing on 3 April 2014 I accepted the submission of the Applicant that its rules and the RO Act had been complied with in making the proposed amendments. I was then advised by the parties that all objections had now been settled and withdrawn.

Relevant Provisions of the RO Act

[15] Section 18A sets out the requirements for an employer association to be able to be registered in the federal system as follows:

“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.”

[16] I need to be satisfied that the criteria for registration contained in s.19 have been met and, if so, I must grant the application.

“19 Criteria for registration of associations other than enterprise associations

(1) The FWC 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) the FWC 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 the FWC accepts an undertaking from the association that the FWC 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 the FWC may take into account in considering, under subparagraph (1)(j)(ii), the effectiveness of the representation of an organisation or association, the FWC 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), the FWC 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) The FWC 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.”

[17] Finally, s.25 gives authority to the Commission to approve an amendment to the rules of an applicant organisation to comply with the requirements of the Commission, the Act and/or to settle an objection.

“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.”

Coverage of the Applicant

[18] As a result of the settlement of the objections the proposed “Conditions of Eligibility” of the Applicant are as follows:

“6. Eligibility for Membership

A person is eligible for membership of the Association if, and only if that person:

(a) is or is usually an employer, or carries on business and intends to become an employer within 30 days of making an application for membership of the Association; and

(b) is an employer wholly or principally engaged in the business of providing professional consulting services to clients in connection with the built and/or natural environment;

provided that to avoid doubt, any employer wholly or principally engaged in any of the following businesses shall not be eligible for membership:

the selling and/or installing of electrical products; or

(i) plumbing, gasfitting or drainage contracting; or

(ii) building construction.

‘Professional consulting services’ means such services provided by consulting engineers, architects, urban planners, quantity surveyors and environmental scientists.”

[19] It can be seen that the Applicant, in general terms, seeks to enrol professional consulting service employers in connection with the built and/or natural environment. The objections were resolved, essentially, by the exclusions in the proviso in Rule 6.

Compliance with the RO Act

[20] The Applicant has lodged with the Commission a consolidated copy of the proposed rules incorporating the amendments to settle the objections and to comply with the RO Act as required by the Regulatory and Compliance Branch of the Commission. Pursuant to s.25 of the RO Act. I grant leave to the Applicant to alter its rules in the manner submitted to the Commission.

[21] I am satisfied that the Applicant is a federally registrable association of employers within s.18A(1) of the RO Act which is quoted above. The evidence was that all of its members are federal system employers.

[22] I am satisfied also that the Applicant has met the criteria for registration provided for in s.19 including:

● It is a genuine and independent association of employers as required by sub sections (1)(a) and (b).

● Its members have the number of employees required by subsection (1)(c).

● The rules, as amended, comply with the requirements of the RO Act.

● The Applicant’s name does not infringe on the provisions of sub-section (1)(g).

● The Applicant’s members have endorsed the registration of the Applicant in accordance with its rules as required by sub-section (1)(h).

● The objections having been withdrawn, there is no organisation to which the members of the Applicant could more conveniently belong and which would more effectively represent them as specified by sub-section (1)(j).

Conclusion

[23] In summary, I am satisfied that the application complies with s.18, s.18A and s.19 of the RO Act.

[24] I therefore grant the application for registration of “Consult Australia [Industrial] as an association of employers.

[25] At the request of the Applicant, the operative date of this decision and the date of registration of the Applicant shall be 1 July 2014.

DEPUTY PRESIDENT

Appearances:

P. Punch for the Applicant.

R. Calver for Master Builders Australia Ltd and the MBAs.

K. McKosh and G. Jervis National Electrical and Communications Association.

S. Kramer for the Master Plumbers and Mechanical Services Association of Australia.

Hearing details:

2013

Sydney:

October 16;

December 17.

2014

March 5;

April 3.

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