Liquor, Hospitality and Miscellaneous Union
[2011] FWA 766
•15 FEBRUARY 2011
[2011] FWA 766 |
|
DECISION |
Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act - Application for change of name of organisation
Liquor, Hospitality and Miscellaneous Union
(D2010/5018)
VICE PRESIDENT WATSON | SYDNEY, 15 FEBRUARY 2011 |
Rules of organisation - change of name – application to change name of organisation from LHMU to “United Voice” - consent to change of name - whether change made under the rules of the organisation - whether new name would cause confusion - Fair Work (RO) Act 2009, s 158
Introduction
[1] This decision concerns an application by the Liquor, Hospitality and Miscellaneous Union (LHMU) for consent under s 158(1) of the Fair Work (Registered Organisations) Act (the RO Act) to change its name to “United Voice”.
[2] On 5 November 2010, the LHMU filed an application with Fair Work Australia under s 158(1) of the RO Act for consent to change its name to “United Voice”.
[3] The LHMU has a very diverse membership. It includes childcare professionals, security guards, cleaners, health and aged care workers, teachers’ aides, hospitality and hotel staff, casino staff, bakers, manufacturing workers and many others. Surveys of the LHMU membership indicate that its current name is unpopular and not appropriate for many categories of members. The union has embarked on a lengthy process to develop a new name. The proposed new name, “United Voice”, was strongly endorsed by membership surveys, meetings, focus groups and other communications.
[4] The application was published in the Commonwealth of Australia Gazette, GN 45, on 17 November 2010.
Applicable legislation
[5] Section 158 of the RO Act relevantly provides:
“158 Change of name or alteration of eligibility rules of organisation
(1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:
(a) in the case of a change in the name of the organisation - FWA consents to the change under this section;
...
(2) FWA may consent to a change or alteration in whole or part, but must not consent unless FWA is satisfied that the change or alteration has been made under the rules of the organisation.
(3) FWA must not consent to a change in the name of an organisation unless FWA is satisfied that the proposed new name of the organisation:
(a) is not the same as the name of another organisation; and
(b) is not so similar to the name of another organisation as to be likely to cause confusion.
…
(9) Where FWA consents, under subsection (1), to a change or alteration, the change or alteration takes effect on:
(a) where a date is specified in the consent - that date; or
(b) in any other case - the day of the consent.”
[6] Section 6 of the RO Act provides that the term “organisation” means an organisation registered under the RO Act.
[7] Under the Workplace Relations Legislation Amendment (Registration and Accountability of Organisations)(Consequential Provisions) Act 2002, organisations that were registered under the Workplace Relations Act 1996 immediately before former Schedule 1B of that Act commenced are taken to be registered under that schedule, and therefore are taken to be registered organisations under the RO Act.
[8] The LHMU was registered under the Workplace Relations Act 1996 immediately before former Schedule 1B of that Act commenced and it is therefore taken to be a registered organisation under the RO Act.
[9] The relevant Regulations are contained in Part 5, Division 1 of the Fair Work (Registered Organisations) Regulations 2009 (the RO Regulations).
Objection
[10] Regulation 124 of the RO Regulations allows for objections in relation to a change of name application to be filed with Fair Work Australia within 35 days of receipt of the application being published in the Gazette.
[11] On 20 December 2010 an objection to the proposed change of name was filed in Fair Work Australia by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union.
[12] No other objections were filed in relation to the change of name application within the timeframe provided by the RO Regulations.
[13] The objection by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union was withdrawn on 2 February 2011.
[14] I note the resolution of the single objection to this application and also note that correspondence between the parties in relation to the withdrawal has been tendered as an exhibit and incorporated into the transcript of the proceedings.
Compliance with the Act and Regulations
[15] Having considered the application and supporting documents, I am satisfied that the LHMU has met the procedural requirements of the Act and Regulations.
Compliance with rules of the Organisation
[16] I am satisfied that the application has been made in accordance with the rules of the LHMU and, in that regard, I note the various resolutions of the National Executive, the approval of the Change in Principle and the submission of the resolution to a ballot of National Councillors. I have also had regard to the statement in support of the application by Ms Tarrant, dated 4 November 2010. The change was endorsed by the National Executive on 11 October 2010 and the National Council by postal vote which closed on 1 November 2010.
Similarity and Confusion
[17] Having regard to all of the material, I am satisfied under 158(3)(a) that the name “United Voice” is not the same as the name of any other organisation registered under the RO Act.
[18] I am also satisfied under s 158(3)(b) that the name “United Voice” is not so similar to the name of another organisation registered under the RO Act as to be likely to cause confusion. The term “united” is a generic word that only appears in one other registered organisation’s name, the “United Firefighters’ Union of Australia”. No other registered organisation name contains the term “voice”. The term “United” is used in the new name as an adjective. The union wishes to use its new name as a composite title, “United Voice”, in all communications.
Conclusion
[19] Having regard to the conclusions above and in all other circumstances of the matter, I consent to the change of name of the LHMU to “United Voice”.
[20] In accordance with s 158(9), the change of name will take effect from 1 March 2011.
VICE PRESIDENT WATSON
Appearances:
N Swancott and D McElrea for the Liquor, Hospitality and Miscellaneous Union
A Jacka for the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union
Hearing details:
2011.
Sydney:
February 7.
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