CSR & Holcim Staff Association

[2020] FWC 1499

[2020] FWC 1499

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act—Rules of organisations

CSR & Holcim Staff Association
(D2019/3 and D2019/4)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 20 APRIL 2020

Application for consent to change in name. Application for alteration of eligibility Rules.

[1] This Decision deals with two applications made by CSR & Holcim Staff Association (CSR). By its first application, CSR has applied to the Fair Work Commission (Commission) under s.158(1) of the Fair Work (Registered Organisations) Act 2009 (RO Act) for a change in the name of the organisation. By its second application, CSR has applied to the Commission under s.158(1) of the RO Act to alter its eligibility rules. The applications were made on 11 March 2019.

[2] The application for a change in the name of the organisation proposed that the name of the organisation be changed to “Salaried Staff United”. CSR submit that the reason for the proposed change of name is that the current name no longer accurately portrays the coverage of the organisation.

[3] The application for alteration to the eligibility rules proposed amending Rule 5 from:

“5 - MEMBERSHIP

The members of the Association shall be such salaried employees as have already signed or shall hereafter sign an application for membership in the form set out in the Schedule hereto and whose application shall have been accepted by the Executive Council. Provided that any application for membership by a salaried employee which the Executive Council shall refuse to accept shall be referred by the Executive Council to a General Meeting of the Association to be held within three months of the date of the Application and such General Meeting may accept such Application.”

to:

“5- MEMBERSHIP

Any prospective, current or former salaried employees having made application for membership as prescribed in Rule 6 must, except as otherwise provided for in these Rules, be admitted to membership of the Association.”

CSR submit that the reason for the proposed alteration to the eligibility rules is to overcome ambiguities.

[4] A notice of the applications was gazetted in the Commonwealth of Australia Gazette on 15 July 2019.

[5] On 15 August 2019 the Australian Municipal, Administrative, Clerical and Services Union (ASU) lodged an objection to the applications. The ASU objected to the application for a change of name on the ground that CSR had not complied with the prescribed conditions for the application. The ASU objected to the proposed alteration to the eligibility rules on the grounds that the application was not made in accordance with the RO Act or the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations) and the proposed alterations have not been made in accordance with the Rules of the organisation.

[6] On 19 August 2019 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) lodged an objection to the applications. The AMWU objected to the application for a change of name on the ground that the name proposed is likely to cause confusion. The AMWU objected to the proposed alteration to the eligibility rules on the grounds that the organisation has no legitimate interest in covering and representing persons who are prospective or former employees and that such employees may include AMWU members or employees eligible to join the AMWU. The AMWU also objected on “more conveniently belong” grounds.

[7] On 10 September 2019 I directed parties to confer with a view to resolving the issues raised by the objectors.

[8] On 20 December 2019 my Associate was advised that CSR and the objectors had resolved the issues in dispute. On 17 February 2020 CSR filed a deed of agreement signed by the Applicant, the ASU and the AMWU as set out in Attachment 1 to this Decision. Relevant to the proposed change of name, CSR agreed to amend its application so that the proposed new name of the organisation be “CSR, Holcim, Wilmar & Viridian Staff Association known as Salaried Staff United”. Regarding the proposed alteration to the eligibility rules, CSR agreed to amend its application such that Rule 5 be as follows:

“5 – MEMBERSHIP

Any prospective, current or former salaried employees having made application for membership as prescribed in Rule 6 must, except as otherwise provided for in these Rules, be admitted to membership of the Association.

Provided that for the purposes of this Rule:

(a) a prospective salaried employee shall mean a person who has made application to be employed by the Company at a yearly rate of pay but is not yet so employed: and

(b) a former salaried employee shall mean a salaried employee whose employment has been terminated by the Company and is challenging that termination before a tribunal or court.

A prospective salaried employee’s eligibility for membership shall lapse should his or her application for employment by the Company be unsuccessful.

A former salaried employee’s eligibility for membership shall lapse should the challenge to his or her termination fail.”

[9] Section 158(1) of the RO Act enables the Commission to consent to a change in name and alteration to the eligibility rules of an organisation if it is satisfied that the change and alteration has been made under the Rules of the organisation. In this regard, CSR relies on a number of declarations of its Secretary, Mr Gary Swan.

[10] The declarations demonstrate that the proposed change in name and alteration to the eligibility rules as set out in the applications made on 11 March 2019 were adopted by a unanimous vote of the Executive Council on 1 March 2019 following written proposals on 15 January 2019 made in accordance with Rule 52 of the organisation. The unanimous vote of the Executive Council was made during a meeting of the Executive Council of which notice was given in accordance with Rule 27 of the organisation.

[11] The declarations were filed prior to the resolution of the objections raised by the ASU and the AMWU and inevitably fail to demonstrate that the change in name of the organisation and the alteration of the eligibility rules as reflected in the deed of agreement have been made in accordance with the Rules of the organisation.

[12] Subsequently, CSR filed two further declarations of its Secretary, Mr Swan. The two further declarations demonstrate that the proposed change in name and alteration to the eligibility rules as reflected in the deed of agreement between CSR, the ASU and the AMWU were adopted by a unanimous vote of the Executive Council on 4 February 2020 following written proposals on 21 December 2019 made in accordance with Rule 52 of the organisation.

[13] The organisation appears to have satisfied the requirements of its name changing procedures and its rule altering procedures, and I am so satisfied.

[14] The organisation is also required to comply with Regulation 121 of the RO Regulations. Regulation 121 sets out as follows:

“121 Application for consent to change of name or alteration of eligibility rules of an organisation (s 158 (1))

(1) An organisation may apply to the FWC for the consent of the FWC under subsection 158(1) of the Act to:

(a) change the name of the organisation; or

(b) alter the eligibility rules of the organisation.

(2) An application under subregulation (1) must:

(a) be in the form set out in the Procedural Rules or in a form otherwise approved by the President; and

(b) set out:

(i) if the application is for consent to change the name of the organisation—the proposed name and the reason for the proposal; or

(ii) if the application is for consent to alter the eligibility rules of the organisation—the proposed alteration, the reason for the proposal and the effect of the proposal, in sufficient particularity to allow the proposal to be properly considered; and

(c) contain a declaration:

(i) that the change or alteration was made in accordance with the rules of the organisation; and

(ii) stating the action taken under those rules to make the change or alteration; and

(iii) verifying the facts stated in the application; and

(d) be lodged with the FWC; and

(e) if the application is for consent to alter the eligibility rules of the organisation—be lodged with a copy of the rules that are proposed to be altered.

(3) If an application under subregulation (1) is not in accordance with this regulation, the General Manager must tell the applicant how the application or statement does not comply with the regulation.

(4) An organisation that has a web site must publish on its web site a notice that it has lodged the application mentioned in subregulation (1).”

[15] The applications were signed by Mr Gary Swan, Secretary of the organisation.

[16] The application by an organisation for consent to change its name was in the approved Form F67 and the application for consent to the alteration of the eligibility rules of an organisation was in the approved Form F68. Both applications set out the proposed change, the reason for the change and the effect of the change. The applications contain a declaration stating that the change of name and alteration to the eligibility rules were made in accordance with the Rules of the organisation, stating the actions taken under those Rules to make the change of name and alteration to the eligibility rules and verifying the facts stated in the applications.

[17] I am satisfied that the organisation has complied with the requirements of Regulation 121 of the RO Regulations. I have decided to consent to the change of name and alteration to the eligibility rules under s.158 of the RO Act. The name of the organisation will be as set out in paragraph [2] of Attachment 1 to this Decision and Rule 5 of the organisation’s eligibility rules will be as set out in paragraph [3] of Attachment 1 to this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR717664>

Attachment 1