Hair and Beauty Australia

[2014] FWC 1986

[2014] FWC 1986

FAIR WORK COMMISSION

DECISION

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

Hair and Beauty Australia
(D2013/136)

VICE PRESIDENT HATCHER SYDNEY, 28 APRIL 2014

Alteration of eligibility rules.

[1] On 19 December 2013, Hair and Beauty Australia (the Association) filed an application for consent, under s.158 of the Fair Work (Registered Organisations) Act 2009 (RO Act), to alter its eligibility rules, so as to delete Rule 5A.

[2] Rule 5 of the Association’s rules identifies those persons who are eligible for membership of the Association. It provides:

“5. Persons eligible for membership shall be: Any person who carries on business:

a) as a hairdresser and/or a beauty therapist; or
b) which supplies products and/or services (including training services) unique to the hair and/or beauty industry;
c) Any employer who carries on a business, and who employs staff or personnel whose employment is covered by an industrial award covering the hair and beauty industry (or part of that industry);
d) Any financial member of the incorporated company presently known as Professional Hairdressers Association Ltd A.B.N 40 000 016 026.”

[3] Rule 5A imposes a restriction on the scope of operation of Rule 5. Rule 5A provides as follows:

“5A. Despite anything else contained in these Rules of the Association, the following types of businesses shall not be eligible for membership:

a) Mobile hairdressers who predominately offer services in different locations outside of a salon type environment (this does not include where such services are rendered to clients in relation to specific and important events, such as weddings); and
b) Businesses that offer hairdressing and/or beauty services to the public from residential premises.”

[4] The two types of businesses identified in sub-paragraphs (a) and (b) of Rule 5A would, but for Rule 5A, be eligible to be members of the Association under Rule 5. It is apparent therefore that the effect of the grant of consent to the deletion of Rule 5A would be to render those two types of businesses - which can generally be described as mobile hairdressers, and home-based hairdressing and beauty services businesses - eligible to be members of the Association. The Association has identified the reason for this alteration to its eligibility rules as being that increases in business costs have led to a shift from commercial premises to residential areas, so that alteration would effectively allow for it to accommodate the changing circumstances of its members.

[5] Notice of the Association’s application was published in the Commonwealth of Australia Gazette Notices on 21 January 2014. There were no objections received.

[6] Section 158 of the RO Act specifies a number of statutory pre-requisites to the grant of consent to changes or alterations to the eligibility rules of an organisation. I will deal with each of these in turn.

[7] Section 158(2) requires the Commission be satisfied that the change or alteration has been made under the rules of the organisation. I am satisfied that this requirement was met, based on the declaration of Ms Christina Arciuli, Executive Director of the Association, dated 20 January 2014. Ms Arciuli’s declaration states that alterations were made in accordance with Rule 98 of the Association’s Rules, in that at the Annual General Meeting of the Association held on 25 November 2013 a motion to effect the rule change was carried by majority. In doing so, the Association also complied with Rules 73, 74, 84, 85 and 79 (including the requirements as to the provision of notice and presence of a quorum).

[8] Under s.158(4), the Commission is required not to 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 Commission, another organisation to which these persons could more conveniently belong and that would more effectively represent those members. As noted earlier, there were no objectors to the application. On the material before me, I cannot form the opinion referred to in s.158(4).

[9] Section 158(5) provides that s.158(4) does not apply if the Commission accepts an undertaking from the organisation seeking the alteration that the Commission considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and those of the other organisation. Since I have not formed the opinion referred to in s.158(4), s.158(5) is not relevant to my consideration of the Association’s application.

[10] Section 158(6) gives the Commission the discretion to refuse consent if it is satisfied that the alteration to the eligibility rules contravenes an agreement or understanding concerning representational rights to which the organisation is a party. There is no basis for me to conclude that any agreement or understanding relevant to the Association’s rules alteration exists.

[11] Section 158(7) also gives the Commission the discretion to refuse consent if it is satisfied that the alteration to the eligibility rules would change the effect of a demarcation order made under s.133 in a way which would give rise to a serious risk of a detrimental demarcation dispute. There is no basis for me to conclude that any demarcation order relevant to the rules alteration here exists.

[12] Section 158(8) confirms that the Commission has a residual discretion to refuse consent to an alteration to an organisation’s eligibility rules. There are no discretionary considerations which would cause me to refuse consent in this case.

[13] I therefore consent to the alteration of the Association’s rules. Accordingly, Rule 5A shall be deleted from the Association’s rules. The alteration will take effect on and from 5 May 2014.

VICE PRESIDENT

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