DREA

[2021] FWC 1494

[2021] FWC 1494

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.18(c) RO Act - Application for registration by an enterprise union

DREA
(D2020/14)

DEPUTY PRESIDENT COLMAN MELBOURNE, 19 MARCH 2021

Application for registration of an enterprise association – whether association free from employer influence or control – whether majority member support for registration – whether registration would further Parliament’s intention, object etc. – whether rules comply with the RO Act – application dismissed

[1] The following is an edited version of reasons for decision I delivered ex tempore on 18 March 2021. I have added to the decision an introduction, the statutory framework, and a summary of the parties’ contentions, in order to place the published reasons for decision in context.

[2] An association known as ‘DREA’ has made an application under s 18(c) of the Fair Work (Registered Organisations) Act 2009 (RO Act) for registration as an organisation. It contends that it is an enterprise association that is federally registrable for the purpose of s 18C of the RO Act. The name of the relevant enterprise is Bervar Pty Ltd (Bervar), which trades as Della Rosa Fresh Foods. Bervar produces pizzas at its facility in Melbourne.

[3] The application is opposed by the United Workers Union (UWU), the Australian Manufacturing Workers Union (AMWU), and the Australian Municipal, Administrative, Clerical and Services Union (ASU). Each of these unions has lodged a notice of objection to the application under Regulation 23 of the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations).

[4] At various direction hearings, I determined a number of interlocutory applications made under the Fair Work Act 2009 (FW Act). I did so on transcript, because the Commission is not required to publish decisions made under Part 5-1 of the FW Act (see ss 601(1)(a) and 601(4)). I granted an application by DREA under s 596 to be represented by counsel, and a request from the Australian Council of Trade Unions (ACTU) to be heard in relation to the application. I issued directions for the filing of submissions and materials. And I dealt with various applications by the UWU for orders for the production of documents and the attendance of witnesses. I also considered an application by the UWU under s 587(a) of the FW Act that asked the Commission to dismiss DREA’s application and decided that I would not list this application separately but would hear it concurrently with DREA’s application. My determination of that application is that the Commission does not have power under s 587(1)(a) of the FW Act to dismiss an application that has been made under the RO Act, because the power in s 587(1)(a) is exercisable where ‘an application is not made in accordance with this Act’, which means the FW Act.

[5] DREA also lodged four applications that seek to alter the rules of the association. I return to these applications below.

Legislative framework

[6] An association may apply for registration if it is a ‘federally registrable enterprise association’ (s 18(c) of the RO Act). Section 18C(1) states that an ‘enterprise association’ is an association the majority of members of which are employees performing work in the same enterprise. Section 18C(2) states that an enterprise association is ‘federally registrable’ if any of the circumstances in ss 18(C)(2)(a) to (k) are present. These relevantly include the circumstance that some or all of the members of the association are federal system employees, and that the employer in relation to the relevant enterprise is a constitutional corporation (ss 18(C)(2)(b) and (c)). These matters are not in contest. I am satisfied that DREA is a federally registrable enterprise association.

[7] Section 20 of the RO Act then sets out when the Commission must grant an application for registration made by an enterprise association. The section reads as follows:

“20 Criteria for registration of enterprise associations

(1) The FWC must grant an application for registration made by 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(c); and

(ii) is an association for furthering or protecting the interests of its members; and

(b) the association is free from control by, or improper influence from:

(i) any employer, whether at the enterprise in question or otherwise; or

(ii) any person or body with an interest in that enterprise; or

(iii) any organisation, or any other association of employers or employees; and

(c) the association has at least 20 members who are employees; and

(d) 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

(e) the rules of the association make provision as required by this Act to be made by the rules of organisations; and

(f) 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

(g) the FWC is satisfied that a majority of the persons eligible to be members of the association support its registration as an organisation; 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.

(1A) For the purposes of paragraph (1)(b), if a person or body has an interest in the enterprise in question, the FWC may decide that, despite the interest, the association is free from control by, or improper influence from, the person or body.

Note: The FWC could conclude that the association was free from control etc. by the person if, for example, the nature of the person’s interest was not such as to give the person a major say in the conduct of the enterprise or if the person did not have a significant management role in the association.

(2) In applying paragraph (1)(d), 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.”

[8] Section 359(2)(a) of the RO Act provides that the Governor-General may make regulations prescribing ‘the manner in which, and the time within which, applications, submissions and objections under this Act may be made and dealt with’. Regulation 21 deals with applications by associations for registration under s 18 of the RO Act. It states:

“21 Application for registration (s 18)

(1) An application by an association under section 18 of the Act for registration as an organisation must:

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

(b) contain a declaration, made by an officer of the association authorised to make the declaration, verifying the facts stated in the application and in any document lodged with the application; and

(c) be lodged with the FWC; and

(d) be lodged with the following documents:

(i) a list of the members of the association, showing the name and postal address of each member;

(ii) a list of the offices in the association and in each branch of the association;

(iii) a list of the names, postal addresses and occupations of the persons holding the offices;

(iv) a list of the branches of the association, showing for each branch its name and the location of its office;

(v) the rules of the association and the rules of each of its branches;

(vi) a copy of a resolution in favour of the registration of the association as an organisation passed in accordance with the rules of the association by a majority of the members of the association present at a general meeting of the association or by an absolute majority of the committee of management of the association.

(2) An association applying for registration may lodge with the FWC an additional statement supporting the application.”

Submissions

[9] DREA contended that all of the requirements of the RO Act and the RO Regulations had been met. It submitted that it is a genuine association that seeks to further or protect the interests of its members, and that this is reflected in rules 2 and 3 of the association’s rules (s 20(1)(a)). It contended that the association was free from control or improper influence of the kind referred to in s 20(1)(b) of the RO Act. It said that it had at least 20 members who are employees (s 20(1)(c)), and that this was demonstrated by the list of members submitted to the Commission on 4 March 2021, which indicated that the association had some 167 members (217 names appear on the list, but of these 50 have ceased their membership).

[10] DREA contended that the Commission should be satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under the RO Act and the FW Act (s 20(1)(d)), because the association would develop a cooperative relationship between employees and the employer and would develop a ‘direct’ relationship between employees and the employer. DREA also said that its application met the requirement of s 20(1)(e) of the RO Act, because its rules made provision for matters that are required by the RO Act to be contained in the rules of organisations. In this regard, two of the applications to amend the DREA rules concerned substantive changes to align the rules with the RO Act in relation to casual vacancies and the preparation of a roll of voters (rule 5 and Schedule 1).

[11] DREA submitted that the Commission could be satisfied that a majority of the persons eligible to be members of the association, namely employees of Bervar, supported its registration as an organisation (s 20(1)(g)). In this regard, it relied on the list of members dated 4 March 2021 referred to above, and to the fact that members were invited to advise the association if they did not support registration of the association, but none did so. Next, DREA contended that an absolute majority of the committee of management of the association had, under the association’s rules, passed a resolution in favour of registration of the association as an organisation (s 20(1)(h)) and that a copy of the resolution was attached to the application for registration. DREA also contended that, as required by s 20(1)(i), its registration would further Parliament’s intention in enacting the RO Act, as well as the object in s 3 of the FW Act, because it would acknowledge the special circumstances of medium-sized enterprises, enable representation of employees at work through the development of cooperative relationships, and encourage member participation in the running of the association.

[12] DREA submitted that its application complied with the RO Act and the RO Regulations, and that all necessary documents had accompanied the lodgment of its application in the Commission. It submitted that its application for registration should be approved.

[13] The UWU led the unions’ opposition to the application and objected to it on numerous grounds. First, it submitted that DREA was not a genuine association. It said that there was no evidence that the association was ever properly formed in the first place, and that the Commission cannot be satisfied that it exists at all. It submitted that there was also no evidence of how the inaugural officer holders of DREA came to be appointed, or on what basis they purported to exercise authority to apply to the Commission for registration of the association. It noted that an association known as the Della Rosa Employees Association had applied for registration last year, but that the application was withdrawn on 19 August 2020. The UWU said that the process by which office holders and members of that organisation had transferred to DREA was opaque, and that it was unclear which persons were now properly officers holders and members of DREA.

[14] Secondly, the UWU submitted that the Commission could not be satisfied that DREA was free from employer influence or control. It noted that several officers of DREA were employed in senior positions at Bervar, and that this effectively afforded the company a major say in the conduct of the enterprise. It said that Mr Cameron Blewett was both the industrial relations manager of the company and the president of the association, which gave rise to an irreconcilable conflict of interest and purpose, and an obvious means by which the employer could exercise control or influence over the association. Further, Ms Jessica Kirkman was both the company’s payroll officer and the secretary of the association, placing her in a position of potential conflict of interests as between her obligations to the company and the purported objectives of the association.

[15] The UWU submitted that the evidence of the witnesses whose attendance had been required by order of the Commission had also established that the DREA membership application form that had been in use until mid-February 2021 had stated that employees of the company were required to be members of the association unless they had a conscientious objection to union membership. The UWU said that, as well as being incompatible with, and arguably in contravention of, a range of provisions of the FW Act and RO Act, this was a clear indication of employer influence or control. It noted that this membership requirement was also reflected in a company policy, which remained in force. In addition, the evidence had established that the company had a memorandum of understanding with the association under which it had agreed to pay employees’ membership fees until the end of the 2020/2021 financial year. The UWU said that this too was clear evidence of employer influence or control over the association.

[16] The UWU further submitted that Mr Blewett had previously promoted himself as a consultant providing advice to employers on a ‘union-free’ strategy, explicitly by means of the creation of enterprise associations. Tendered in evidence was a printout from ‘Linked-In’ of an article authored by Mr Blewett entitled ‘Union Free in 28-days’. It is a guide for ‘a process to become Union free’, and explains how, in this context, an employer can establish an enterprise association. The post remains available on the internet. It identifies Mr Blewitt as the author, and as the founder and managing director of ‘IR Simplified’, an ‘industrial relations consulting and coaching firm specialising in helping medium sized businesses to simplify their industrial relations challenges’. The UWU said that this posting was a strategy offered by Mr Blewitt to employers to make their workplaces union free by means of the establishment of an enterprise association, and that it was reasonable to infer that the enterprise employer in this case had adopted this strategy. It contended that an association that is set up by the relevant employer for this purpose is plainly one that is subject to employer control or influence.

[17] Thirdly, the UWU submitted that the Commission could not be satisfied that a majority of persons eligible to be members of the association supported its registration, because there was simply no evidence to demonstrate that this was the case.

[18] The UWU contended that the application also failed to meet the requirement in s 20(1)(h) of the RO Act, because it had established neither that a majority of the members present at a general meeting of the association, nor an absolute majority of the committee of management, had passed, under the DREA rules, a resolution in favour of registration of the association as an organisation. The UWU also said that the document appended to the application, entitled ‘meeting minutes template’ and dated 18 August 2020, was not a resolution, nor was it passed in accordance with DREA’s rules, because, among other things, there was no evidence of notice having been given under rule 56 for the meeting at which the resolution was said to have been adopted. The UWU said that the association had therefore plainly failed to comply with regulation 21(d)(vi), which requires an application for registration of an enterprise association to be accompanied by a copy of a resolution in favour of registration. This had not occurred, nor was there any evidence that such a resolution actually existed.

[19] The UWU further contended that in a variety of respects, the DREA rules did not conform with the requirements of the RO Act. It said in particular that rules 10 and 46 were contrary to s 142(1)(d) of the RO Act, which provides that the rules of an association must not discriminate between applicants for membership on proscribed grounds, and that the rules did not make proper provision for secret ballots, as required by s 143(1)(e) of the RO Act. The UWU also submitted that the association had failed to appreciate that any amendments to the rules had to occur in accordance with the RO Act and required the Commission’s approval, and that they could only take effect thereafter.

[20] The UWU contended that the Commission could not be satisfied that the application met the requirements of the RO Act or the RO Regulations and that it must be dismissed.

[21] The objections of the AMWU and the ASU supported the contentions of the UWU and elaborated upon them in certain respects that I do not propose to summarise here. They also advanced a number of additional contentions as to why the application should be dismissed.

[22] The ACTU submitted that when enterprise associations were established as a species of organisation by the Workplace Relations and Other Legislation Amendment Act 1996, the Explanatory Memorandum had noted that the requirement that an association not be subject to employer control or improper influence was a measure ‘to safeguard the independence of representative organisations in the context of the less onerous requirements for registration.’ The ACTU contended that DREA was subject to employer control through the instrumentality of Mr Blewett, who, the Commission should conclude, was implementing the union-free strategy that he had espoused in his Linked-In blog. In this connection, the ACTU contended that the association was neither genuine, nor an association for furthering or protecting the interests of its members. Instead, it was one that sought to further or protect the employer’s interests. The ACTU further contended that the application was contrary to the freedom of association norms in the FW Act and RO Act, and that the requirement of s 20(1)(i) was not met in this case, because the Commission could not conclude that the registration of the association would ‘further’ Parliament’s intention in enacting the RO Act, or the object in s 3 of the FW Act. The ACTU asked the Commission to give full effect to the important safeguards that have applied to applications of this kind since 1996.

Consideration

[23] I have concluded that the application must be dismissed, for the following reasons.

[24] Section 20 of the RO Act states that the Commission must grant an application for registration of an enterprise association if, and only if, the application meets each of the requirements of subsections 20(1)(a) to (i). I have concluded that the application does not meet several of these requirements. Although it is sufficient, in order to determine the application, that only one of the requirements has not been met, I consider it appropriate to address each of the following matters. Each provides a clear and independent basis upon which the application must be dismissed.

[25] First, I consider that DREA is not free from control by, or improper influence from, the employer. The president of the association, Mr Blewett, is also the industrial relations manager of Bervar. As a member of the association’s committee, and chairperson of any general meeting or committee meeting (see rules 40 and 42), the president has an important role in the management of the association. Rule 2 states that the ‘sole purpose’ of the association is to ‘serve the collective interests of members employed by the company by winning significant and long-lasting gains’. The nature of these gains is not specified, but to the extent that they include gains in terms and conditions of employment, and in particular wages, the collective interests of the members of the association are reasonably likely at times to differ from the interests of Bervar. Members, who are employees of the company, are likely to have an interest in maximising their earnings, whereas Bervar is likely to have an interest in containing its labour costs. Section 20(1)(b) is concerned with control and influence, not conflicts of interest, however the two are related.

[26] As Bervar’s industrial relations manager, Mr Blewett would be expected to deal with employees in relation to claims they might make of the company in respect of wages and conditions. Mr Blewett acknowledged in his evidence that if the association wanted to bargain with the company for an enterprise agreement, his role as the company’s industrial relations manager would require him to represent the company position. Mr Blewett said that on the other hand he would have little or no role, as president, in bargaining for the association. I do not accept this. A member of the committee of management of the association would be able, and would be expected, to contribute to the decision-making process of the organisation and be involved in determining or coordinating the association’s claims. I note that one of the objects of the DREA rules is bargaining (rule 3(v)). But as an employee of the company, Mr Blewett has an implied duty of fidelity to Bervar that requires him to act in the company’s interests. Mr Blewett’s position in this regard is very different from that of other employee members of the association, because his job is to manage industrial relations matters for the company. Through Mr Blewett, the company would be able to exercise control or influence the association’s representation of its members’ interests, including in relation to negotiations concerning terms and conditions of employment.

[27] Section 20(1)(b) is very clear. An association must be ‘free’ from employer control or improper influence. The concepts of control and influence are not categorical, in the sense that one cannot say that control or influence is either present or absent. There may be degrees of control or influence. Section 20(1)(b) does not tolerate any degree. The president of the association may be only one member of the committee of management. But this officer is clearly able to exert at least some control and influence over the association. I would also note that the committee of management comprises the company’s warehouse manager, and its payroll officer. These persons have managerial or human resources functions in the company and, like Mr Blewett, have implied if not express contractual obligations to act in the best interests of the company. Through these persons and Mr Blewett, the association is exposed to control by, or improper influence from the company. In the latter regard, I consider that ‘improper’ connotes influence that is not in accordance with acceptable standards, which, in the present context, would include influence that is inappropriate because it may compromise the independence of the association.

[28] DREA contended that the company had not sought to exercise control over the association and that there was no evidence that it had in fact done so. It said that the company was a private family-owned business and that the only people with an interest in it were the members of the family, and that none of the family members were members of DREA. It said that no favours had been granted to DREA by the company beyond what is commonly asked of employers by other registered organisations, and that the officers of the association have no influence over the company.

[29] I do not accept that the company has not exercised control over the association. The evidence clearly establishes that it has done so. It is not in dispute that membership of DREA is a condition of employment, mandated by company policy. Mr Blewett’s evidence was that the policy remains in existence. The application form for membership of DREA that existed until mid-February 2021 was tendered in evidence. It stated:

“Please keep in mind that as membership of DREA is a condition of your employment with Della Rosa Fresh Foods, resigning from DREA may have an impact on your employment.”

[30] Plainly, by requiring employees to be members of the association, the company has been controlling the association’s membership. The control was exerted under the shadow of what I consider to be a thinly veiled threat of adverse consequences for employees who resigned their membership, a matter to which I will return below.

[31] Further evidence of the employer’s actual control of the association is the uncontested fact that there is a memorandum of understanding between the company and the association pursuant to which the company will pay the membership fees of employees until the end of the current financial year. In any event, the concern of s 20(1)(b) that an enterprise association be free from control from any employer encompasses not only control that has been exercised, but also control that exists as a structural fact. Were it otherwise, the safeguard contained in s 20(1)(b) would be illusory. An employer could simply wait until the application for registration had been granted before exercising its control. This cannot have been how the Parliament intended the provision to operate.

[32] DREA contended that the owners of the company are not members of the association and that there was no evidence of their substantive involvement in the association. However, the means by which an employer might control or influence an enterprise association extend beyond the hands of the company’s owners, directors, or shareholders. A company also acts through the medium of its managerial employees. Further DREA’s contention that its officers have no influence over the company is beside the point; the concern of s 20(1)(b) is employer control or influence over the enterprise association, not the control or influence of the association over the employer. In my opinion, the company has exerted control over the association, and retains an obvious ability to exercise a measure control over, or improperly influence, the association, because its industrial relations manager is the president of the association.

[33] A second requirement of s 20(1) of the RO Act that has not been met is that in s 20(1)(g). The evidence does not establish that a majority of the persons eligible to be members of the association support its registration as an organisation. DREA relied on its membership list which shows that some 167 employees are members of the association. It said that this represented an overwhelming majority of employees eligible for membership of the association, because Ms Kirkman’s evidence was that the company has approximately 180 employees.

[34] However, a person’s membership of the association does not necessarily imply support for the registration of the association as an organisation under the RO Act. It is one thing to join a staff association. It is another thing altogether to support that association’s registration as an enterprise union. An employee may not wish to be a member of an industrial staff association, which could be expected, at times, to disagree with management. An employee who was a member of another union might not want to support the establishment of a new union. It is not difficult to see the policy behind the requirement of s 20(1)(g). But regardless of this, there is simply no evidence that any employee, except perhaps those who gave evidence in the proceeding, support the application for registration of the association under the RO Act.

[35] DREA pointed to an email message sent to its members by Mr Blewett on 8 March 2021, which conveyed to members DREA’s understanding that by joining the organisation, the members also supported its registration. The message told members that if this was not the case, members should advise the association by email. No such messages were received. However, the fact that members did not ‘opt out’ of the association’s assumed support for its registration is not reliable evidence of their support for registration. First, there is no basis for any assumption that membership equates to support for registration. Secondly, the absence of opposition to registration is not the same thing as support for registration. Thirdly, data submitted by DREA showed that only 40% of recipients even opened the email message. There was no petition, no correspondence, and no record of support from members. There is simply no basis for me to conclude that a majority of persons eligible to be members of the association support its registration as an organisation.

[36] Thirdly, I am not satisfied 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, passed a resolution under the rules of the association in favour of registration of the association as an organisation (s 20(1)(h)). The minute of the committee meeting of 18 August 2020 records seven items under ‘general business’. The second states that ‘Jessica [Ms Kirkman] updated the members on the status of the application to register the association with the FWC’. The third is headed ‘motion to withdraw application’ and states that Ms Kirkman ‘proposed that in light of the likelihood of the application failing, that it be withdrawn, the rules updated, and resubmitted as soon as possible.’ It then states: ‘Motion was seconded, passed unanimously.’

[37] I accept that an absolute majority of the committee of management were present at the meeting on that day. But I am not satisfied that the committee passed a resolution under the rules of its association. One can ascertain that a decision was taken by those present both to withdraw the earlier application and to prepare and submit a new application for registration. However, it is clear that the revised draft rules were not before the committee at this time, nor is there any indication of the problems associated with the first application and why a new application would address them, including specifically what changes would be made to the rules. It is doubtful whether a resolution (which by its nature is a ‘firm decision’) could be passed to make a new application without these matters having been finalised. I also note that there is no evidence of a notice having been given for the committee meeting in accordance with the association’s rules. Further, and in any event, it cannot be said that a copy of the resolution was lodged with the application in the Commission. The meeting minute itself is not a resolution. The requirement of regulation 21(1)(d)(vi) has therefore not been met.

[38] Fourthly, I am not satisfied that the requirement of s 20(1)(i) of the RO Act has been met, namely that the registration of the association would further Parliament’s intention in enacting the RO Act (s 5), or the object of the FW Act (s 3). Section s 5(4) of the RO states:

“It is also Parliament’s intention in enacting this Act to assist employers and employees to promote their economic and social interests through the formation of employer and employee organisations, by providing for the registration of those associations and according rights and privileges to them once registered.”

[39] Section 3 of the FW Act states that the object of the Act is to provide a balanced framework for cooperative and productive workplaces, including by ‘enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association …’ (s 3(e)).

[40] Section 20(1)(i) requires the Commission to make an overall qualitative evaluation of the application by reference to the purpose of the RO Act and the object of the FW Act and reach a conclusion as to whether registration will ‘further’ them. I do not consider that the registration of DREA would do so, even leaving aside my conclusions about the failure of the application to satisfy other requirements of s 20 of the RO Act.

[41] The evidence raises a real concern that the association was established principally for the benefit of the employer. This concern also intersects with s 20(1)(a) of the RO Act, namely whether the association is one ‘for furthering or protecting the interests of its members’. The ACTU submitted that the establishment at Bervar of an enterprise association with Mr Blewett’s close involvement, and Mr Blewett’s previous online ‘touting’ for consultancy work to implement a ‘union free’ strategy by means of an enterprise association, was no coincidence. It said that there is an obvious link, and that the Commission should infer that Mr Blewett is implementing his ‘union free’ strategy at Bervar.

[42] Mr Blewett’s Linked-In article states that his ‘union free model … relates to employees forming their own union, otherwise known as an Enterprise Association’. It goes on to say that the process ‘isn’t about developing some ‘union busting’ plan, which could be illegal’. But despite this disclaimer, the text goes on to state that a business may prefer to have ‘a little bit of pain’ now in order to have ‘freedom from Union ‘pain’ in the future.’ Freedom from union pain appears to mean a workplace free from unions (other than the enterprise union) or their influence. The text goes on to say that there would be a cost to the business by ‘going union free’, but that ‘not doing so would likely cost more’. It ‘promises’, plainly to employers, that any ‘pain’ suffered now would be worth it in the long run. In my view, the text purports to offer employers a strategy to keep other unions, or union influence, out of the workplace, by means of the establishment of enterprise associations. It promotes this strategy as one that is substantially in employers’ interests, even if the text refers to certain benefits accruing to employees as well.

[43] DREA submitted that, even if this strategy were adopted, it would not prevent employees from joining other unions. But it is hardly a point of mitigation that the text does not purport to ban membership of other unions. DREA said that the document was written years ago. However, Mr Blewett acknowledged that the date appearing on the document, 15 November 2018, may have been the day he posted the entry on Linked-In. This is not so long ago. More generally, DREA contended that no link had been demonstrated between the establishment of the enterprise association at DREA and Mr Blewett’s ‘union free’ document, and that the Commission should not infer that one exists.

[44] However, in order to conclude that registration of DREA would further parliament’s intention in enacting the RO Act and the object in s 3 of the FW Act, I would need to be satisfied that there was no link between Mr Blewett’s ‘union free’ strategy and the establishment of DREA. I am notsatisfied that there is nolink. Mr Blewett gave evidence that the establishment of DREA was his idea, and that he assisted in drafting the rules. He did not disavow any intention to keep other unions out of the workplace of the enterprise. I maintain a concern that the establishment of DREA and its application for registration is connected to an initiative of Mr Blewett to effectuate his previously advertised ‘union free’ strategy.

[45] A further basis upon which I have concluded that I cannot be satisfied of the matters in s 20(1)(i) of the RO Act is the fact that it is company policy that employees must be members of DREA, and that resigning from DREA may have an impact on their employment. The requirement that employees be members of DREA, and the threat that resignation could impact on their employment, is an interference with employees’ right to freedom of association. This right is enshrined in Part 3-1 of the FW Act and s 21 of the RO Act. It is explicitly recognised in the object of the FW Act set out in s 3(e). It is irrelevant that the company policy advises employees that they can lodge an application for a conscientious objection certificate under s 180 of the RO Act. I also note that the majority of employees employed by the company are casuals. For such employees, whose employment is by nature insecure, the statement that resignation from DREA could have an ‘impact’ on their employment would be particularly chilling, and coercive.

[46] Finally, I am not satisfied that the rules of the association make provision as required by the RO Act (s 20(1)(e)). I consider that, in addition to the two matters raised by the UWU that are referred to above, there are three further respects in which the DREA rules do not comply with the RO Act. I did not raise these matters with the association at the hearing, because I take the view that it is for the applicant to demonstrate to the Commission why its rules conform to the requirements of the RO Act, not for the Commission to raise concerns in the hearing that may lead to further applications to amend the rules and associated adjournments and delay. The hearing of the application is not an iterative process to accommodate the rectification of deficiencies. The three additional matters are as follows.

[47] First, under rule 10(2) of the DREA rules, a member is entitled to vote if she or he has six months’ service at the company or, if a casual, 12 months’ service. Section 345 of the RO Act provides that, subject to reasonable provisions in the rules of an organisation in relation to enrolment, every financial member has a right to vote in any ballot taken for the purpose of submitting a matter to a vote of the members of the organisation. Imposing a service requirement before allowing financial members to vote is not compatible with s 345. Secondly, there does not appear to be any provision in the rules that ensures that the committee of management is subject to the control of the membership, as required by 141(1)(b)(iv). Thirdly, rule 52(3) states that a general meeting of the association may by special resolution remove a committee member from office, apparently for any reason. I do not consider this rule to be compatible with s 141(1)(c) of the RO Act. That section states that rules may provide for the removal from office of a person elected to office only where the person has been found guilty, under the rules of the organisation, of misappropriation of funds, a substantial breach of the rules of the organisation, or gross misbehaviour or gross neglect of duty.

[48] Finally, because it is clear that the application for registration must be dismissed, I do not propose to determine the association’s four applications to amend its rules.

Conclusion

[49] If an application for registration fails to satisfy any one of the requirements of s 20(1) of the RO Act, it must be dismissed. I have concluded that the application does not meet five of these requirements. I do not propose to address the remaining objections raised by the unions and the ACTU.

[50] The application for registration of an enterprise association is dismissed.

DEPUTY PRESIDENT

Appearances:

B. Shaw of counsel for DREA
P. Richardson for the UWU
K. Tobin for the AMWU
J. Nucifora for the ASU
S. Kemppi for the ACTU

Hearing details:

2021
Melbourne
15 March, 18 March

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