DECISION

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

Korean Workers Union
(D2016/53)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 8 MARCH 2017

Application for registration by an association of employees.

Introduction

[1] On 25 March 2016 an application was lodged in the Fair Work Commission (the Commission) to register the Korean Workers Union (KWU) as an organisation pursuant to Section 18(b) of the Fair Work (Registered Organisations) Act 2009 (the RO Act).

[2] The application was signed by Mr Young Haln, the President and Sam Haln, the Vice-President of the KWU and was accompanied by a declaration by them dated 20 March 2016, that the application was endorsed in accordance with the KWU’s rules and is made in accordance with the RO Act. Attached are a list of some 59 members and a list of offices together with the relevant details. Also attached is a copy of the resolution passed by the Committee of Management of the KWU on 20 March adopting the rules and resolving that the organisation seek registration as an organisation pursuant to the RO Act.

[3] As well as the President and Vice President, the application named Mr Aron So as General Secretary and Mr Ji Yong Kim as Treasurer.

[4] The proposed eligibility rules of the KWU can be discerned from the following extracts from the relevant rules:

“4 - INDUSTRY

(a) The term “Korean Employer” used hereon in these rules are described as an employer:

(i) generally considered by the local Korean community in which it operates, as a “Korean business” by reason that it is managed or owned by a person or persons of Korean background; or
(ii) which primarily conducts business with the Korean community; or
(iii) that is a corporation incorporated in the Republic of Korea, or is an associated entity of such a corporation as defined in the Corporations Act 2001 (Cth).

(b) The industries covered by the Union will be:

(i) Construction: workers employed by a Korean Employer as carpenters, electrical and gas tradespersons, fire-protection installers, heating and ventilation tradespersons, painters, plasterers, plumbers, sign-writers, tilers, and construction labourers generally;
(ii) Hospitality: where the Korean Employer is a bar, café, restaurant, hotel, motel, pub, resort, serviced apartment, or entertainment venue; and
(iii) Sales and distribution: where the Korean Employer is a retail shop, wholesale distributor, importer, exporter, or other sales business including automotive and real estate sales.

5 - OBJECTS

The Objects of the union shall be:-

(a) To secure the complete representation and effective organisation of persons who are employed by Korean Employers.

(b) Render assistance to workers of Korean Employers, who are unable to deal effectively with employers, other workers, and regulators in relation to their employment rights and obligations due to differences in business customs, culture, and language.

9 – CONDITIONS, ELIGIBILITY AND RIGHTS OF MEMBERS

(a) The common criteria for all persons applying for membership of the Union are:

(i) Be employed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWC 1193
Decision Date: 8 MARCH 2017

CaseChat Overview and Summary

In the case of Korean Workers Union, the applicant sought to register an association under the relevant Australian legislation. The dispute arose as the applicant claimed it was an association of employees, but this was contested by the respondents who argued that the applicant did not meet the necessary criteria for registration. The matter was heard by the Australian Industrial Relations Commission.

The primary legal issue before the court was whether the applicant satisfied the definition of an employee association under the relevant legislation. The court had to determine if the applicant was genuinely an association of employees and whether it met all the statutory requirements for registration. This involved examining the applicant's constitution, membership, and activities to ascertain if they aligned with the legislative framework.

The court considered the evidence presented and concluded that the applicant did not fulfil the statutory requirements for registration as an employee association. The court found that the applicant's constitution and activities did not align with the legislative definition of an employee association. Consequently, the application for registration was dismissed. The court detailed its reasoning, focusing on the specific statutory provisions that the applicant failed to meet. The court's decision was definitive, and no further appeal was permitted.

Orders