Industrial Staff Union

[2014] FWC 765

[2014] FWC 765

FAIR WORK COMMISSION

DECISION

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

Industrial Staff Union
(D2013/126)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 31 JANUARY 2014

Application for registration by an association of employees.

[1] On 13 September 2013 an application was lodged to register the Industrial Staff Union (the Applicant) as an organisation pursuant to s.18(b) of the Fair Work (Registered Organisations) Act 2009 (the RO Act)

[2] The application was notified by publication in the Commonwealth Gazette on 26 September 2013.

[3] A notice of objection was filed on 31 October 2013 by the Australian Municipal, Administrative, Clerical and Services Union (ASU).

[4] The application was heard by me on 22 November 2013. It was adjourned to allow discussions between the Applicant and objector. I also requested that a submission be provided by the Applicant, prior to the next hearing, as to compliance with some aspects of the RO Act, especially s.18B.

[5] The matter was heard again on 18 December 2013. I was advised that the ASU objection had been settled and would be withdrawn. This was confirmed by the parties in writing on 19 December.

Relevant Provisions of the RO Act

[6] Section 18B sets the requirements for an employee association to be able to be registered in the federal system as follows:

“18B Federally registrable employee associations

(1) An association of employees is federally registrable if:

(a) it is a constitutional corporation; or

(b) some or all of its members are federal system employees.

(3) An association of employees is not federally registrable if it has a member who is not one of the following:

(a) an employee;

(b) a person specified in subsection (4);

(c) an independent contractor who, if he or she were an employee performing work of the kind which he or she usually performs as an independent contractor, would be an employee eligible for membership of the association;

(d) an officer of the association.

(4) The persons specified for the purpose of paragraph (3)(b) are persons (other than employees) who:

(a) are, or are able to become, members of an industrial organisation of employees within the meaning of the Industrial Relations Act 1996 of New South Wales; or

(b) are employees for the purposes of the Industrial Relations Act 1999 of Queensland; or

(c) are employees for the purposes of the Industrial Relations Act 1979 of Western Australia; or

(d) are employees for the purposes of the Industrial and Employee Relations Act 1994 of South Australia.

(5) An association of employees 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 employees.”

[7] Section 19 sets out the criteria that must be satisfied for the association to be registered:

“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.”

Background

[8] The Applicant’s eligibility is as follows:

“3 - (Constitution)

The Union shall consist of an unlimited number of persons below the rank of Assistant General Secretary who are employed by the Public Service Association of New South Wales, as:

Principal Industrial Officers

Senior Industrial Officers

Industrial Officers

Regional Organisers

Assistant Industrial Officers

Principal Research and Liaison Officer

Research Officers

Assistant Research Officer

Occupational Health and Safety Officers

Training Officers

Special Projects Officers

Senior Communications Officers

Communications Officer

Organisers

Welfare Officers

or any person employed to perform the same duties as those normally performed by the above named classifications but shall not include the following:

Caretaker’s Cleaners

Stenographers

Typists

Office Assistants

Persons temporarily seconded to the staff of the PSA of NSW”.”

[9] Those that will be eligible to join the Applicant are paid officials of the Public Service Association of New South Wales (the PSA), apart from the General Secretary and Assistant General Secretary. The PSA is an organisation registered as a trade union under New South Wales legislation. Its counterpart under federal legislation is the Community and Public Sector Union (SPSF Group NSW Branch).

[10] The Applicant has existed for decades as a trade union under New South Wales legislation. With the extension of coverage of the federal system since 2005, it now seeks federal registration.

Compliance with the RO Act

[11] The Applicant provided a specific submission on its compliance with s.18B. I accept that the Applicant is a federally registrable employee association within the terms of s.18B.

[12] The Applicant’s eligibility for membership relates to industrial staff employed by the PSA. The PSA is a non-profit organisation of employees registered under the Industrial Relations Act 1996 (NSW). The PSA is now a “federal system employer” pursuant to s.6 of the RO Act and a “national system employer” pursuant to s.14 of the Fair Work Act 2009 as a result of the referral by the New South Wales Government of its powers with respect to industrial relations to the Commonwealth parliament by the Industrial Relations (Commonwealth Powers) Act 2009 (NSW).

[13] As well, the PSA has applied to become a Transitionally Registered Association of employees under Schedule 1 of the RO Act which is another avenue for PSA employees to become federal employees.

[14] I accept also that the Applicant has met the criteria for registration provided for in s.19. I note that:

● It is a genuine and independent association of employees as required by subsection (1)(a) and (b).

● It has over 50 members, as required by subsection (1)(d).

● The rules, as submitted, comply with the requirements of the RO Act. Some of the deficiencies pointed out by the Regulatory Compliance Branch of the Commission have been remedied.

● The members of the Applicant have endorsed the application.

● The ASU objection, having been settled, I am satisfied that subsection (2) is satisfied.

ASU Settlement

[15] The Applicant provided the following undertaking to the ASU:

“Undertaking

ISU acknowledges the ASU has coverage of clerical, administrative and welfare staff employed by registered organisations and is opposed in principle to the creation of a federally registered union without a legitimate history e.g. independent of any employer.

For the purposes of Section 18(b) of the Fair Work (Registered Organisation) Act 2009 and conditional on the ASU withdrawing its objection ISU Undertakes to:

• Insert “New South Wales” and “Public Service Association” into the official title of the proposed registered organisation e.g. “Industrial Staff Union - PSA of NSW”.



• Not recruit or seek to cover employees eligible to join the ASU.



• Submit to the Fair Work Commission that the Undertaking be expressly referred to in any decision approving registration.



• Consult and reach agreement with the ASU about any future necessary changes to the proposed organisation’s eligibility rules to reflect new job titles and roles within the PSA NSW.

[16] The ASU withdrew its objection.

Conclusion

[17] Following the hearing on 18 December 2013, the Applicant submitted an amended set of rules. I am satisfied that the rules comply with the RO Act.

[18] In accordance with the agreement with the ASU, the amended rules provide for an amended name of the Applicant.

Rule 1 provides:

“1. Name

The Union shall be called the “Industrial Staff Union - PSA of NSW. The Union may use and operate under the short title of the Industrial Staff Union of the ISU.”

[19] In accordance with s.25 of the RO Act, I grant leave to the Applicant to change its name and alter its rules in the form submitted. The amended name does not contravene s.19(1)(g).

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

[21] I therefore grant the application for registration of the “Industrial Staff Union - PSA of NSW”.

[22] In order for the Commission to complete the administrative tasks to give effect to the registration, pursuant to s.26, the operative date of this decision shall be Monday, 17 February 2014.

DEPUTY PRESIDENT

Appearances:

B. Stevens and X. Thomson with I. Lisser for the Applicant.

J. Nucifora for the ASU.

Hearing details:

2013

Sydney:

November 22;

December 18.

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