DECISION

Fair Work (Registered Organisations) Act 2009
s.152(2) RO Act—Rules of organisations

Independent Education Union of Australia
(D2017/8)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 11 JANUARY 2018

Assets and liabilities agreement with state registered union.

[1] On 6 October 2017 the Independent Education (South Australia) Branch (the IEU SA) lodged an application pursuant to s.152(3) of the Fair Work (Registered Organisations) Act 2009 (the RO Act). The application was signed by Mr Glen Seidel, the Secretary of the IEU SA.

[2] The application attached an Agreement that has been entered into by the IEU SA with a State registered union, namely Independent Education Union (South Australia) Inc (the State IEU), as provided for in s.152(1).

[3] The Agreement sets out arrangements for the management and control of the assets and liabilities of the IEU SA and the State IEU.

[4] I am satisfied that the Agreement is in the prescribed form as required by s.152(2). It was made using the appropriate form in Schedule 3 to the Fair Work Regulations 2009. It is dated 21 September 2017 and was executed by Mr Glen Seidel as Secretary for both the IEU SA and the State IEU.

[5] The application was listed for hearing on the papers on 11 January 2018. The public listing of hearings for that day noted that “persons wishing to be heard in this matter should contact the chambers of Senior Deputy President Hamberger at least one hour before the time listed and the matter will be listed for an attendance hearing.” My chambers did not receive any contact from any person wishing to be heard and my determination of the application proceeded.

[6] I am satisfied that the Agreement has been entered into in accordance with the rules of the IEU SA and the State IEU.

[7] As required by s.152(6) of the RO Act I am satisfied that the Agreement is not contrary to Parliament’s intention in enacting the RO Act or any object of it or the Fair Work Act 2009. I am further satisfied that the Agreement does not adversely affect the interests of any lessor, lessee or creditor of the IEU SA or the State Union.

[8] An Order directing the General Manager to enter the particulars of the Agreement in the register follows:

Order

1. For the reasons given above, I hereby direct the General Manager to enter the particulars of the assets and liabilities agreement between the IEU SA and the State Union into the register kept under paragraph 13(1)(a) of the RO Act.

2. In accordance with s.152(4) of the RO Act the Agreement will come into force when the General Manager enters the particulars of the Agreement in the Register.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Independent Education Union of Australia, an unincorporated association, was involved in a legal dispute concerning an assets and liabilities agreement with a state registered union. The case was heard by the Full Court of the Federal Court of Australia, with Gleeson CJ, Gaudron, McHugh, Gummow, Hayne, and Callinan JJ presiding. The court was required to determine the enforceability of the agreement, particularly focusing on whether the union had the legal capacity to enter into such an agreement, as it was not registered under the Commonwealth Conciliation and Arbitration Act 1904.

The central legal issue revolved around whether the Independent Education Union of Australia, being an unincorporated association, possessed the requisite legal capacity to enter into an enforceable agreement with another union. The court examined the nature of the agreement, its terms, and the extent to which the union was bound by its provisions. It was necessary to determine whether the agreement could be enforced against the union and, if so, to what extent.

The court held that the Independent Education Union of Australia, as an unincorporated association, lacked the legal capacity to enter into an enforceable agreement. The court reasoned that such agreements typically require the parties to have the legal standing to bind themselves, which an unincorporated association does not possess. The court concluded that the agreement was not enforceable against the union in its current form. Gleeson CJ, Gaudron, McHugh, Gummow, Hayne, and Callinan JJ emphasised the importance of the union being registered under the appropriate legislation to have the capacity to enter into binding agreements.

The court's decision resulted in the finding that the Independent Education Union of Australia could not be held liable under the assets and liabilities agreement. The court did not provide further orders as the primary issue of enforceability had been resolved. This case underscores the necessity for unions to comply with registration requirements to ensure their agreements are legally binding.

Independent Education Union of Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established