Local Government and Shires Association of New South Wales

[2017] FWC 637

[2017] FWC 637

FAIR WORK COMMISSION

DECISION

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

Local Government and Shires Association of New South Wales
(D2016/68)

VICE PRESIDENT HATCHER SYDNEY, 15 FEBRUARY 2017

Alteration of eligibility rules.

[1] On 1 December 2016, the Local Government and Shires Association of New South Wales (the Association) filed an application for consent, under s.158 of the Fair Work (Registered Organisations) Act 2009 (RO Act), to an alteration to its eligibility rules. It also seeks approval of consequential amendments to other rules. The entire package of rules alterations is as follows:

“1. In rule 3(a), delete the definition of “NIAC” therefrom and insert in lieu thereof the
following: “NIRC” means the Norfolk Island Regional Council as constituted under the Norfolk Island Act 1979 (Cth)

2. Amend the definition of “Delegate” in Rule 3(a) by deleting the expression “NIAC” therefrom and inserting the expression “NIRC” in its stead.

3. Amend the definition of “Member” in Rule 3(a) by deleting the expression “NIAC” therefrom and inserting the expression “NIRC” in its stead.

4. Amend Rule 6(a) by deleting the expression “NIAC” therefrom and inserting the expression “NIRC” in its stead.

5. Amend Rule 6(e) by deleting the expression “NIAC” therefrom and inserting the expression “NIRC” in its stead.

6. Amend the table in Step 1 of Rule 23 by deleting from the left hand column in the twelfth row the expression “NIAC” and inserting in its stead the expression “NIRC”

7. Amend item 4 in Step 3 of Rule 23 by deleting therefrom the expression ‘NAIC” and inserting the expression “NIRC” in its stead.

8. Amend Step 4 in Rule 23 by deleting from the second paragraph thereof the expression “NAIC” and inserting the expression “NIRC” in its stead.”

[2] Rule 6, Membership, of the Association’s rules identifies who is eligible to join the Association. Only rules alterations 4 and 5 above, which amend rule 6, are direct alterations to the Association’s eligibility rule amenable to consideration for the Commission’s consent under s.158. Additionally, rules alteration 1 is, in substantive terms, an amendment to the eligibility rule because it changes the effect of rule 6. It will only be those rules changes which will be dealt with in this decision. The consequential amendments in rules alterations 2, 3, 6, 7 and 8 will need to be dealt with by the General Manager (or her delegate) under s.159 of the RO Act.

[3] The Norfolk Island Advisory Council (NIAC) was previously eligible for Associate membership of the Association under Rules 3 and Rules 6(e). On 1 July 2016, by virtue of the Norfolk Island Legislation Amendment Act 2015 (Cth),NIAC was dissolved and replaced by the Norfolk Island Regional Council (NIRC). This change formed part of a transition from a system of self-government on Norfolk Island to a system of regional local government under the Commonwealth of Australia and modelled on New South Wales local government arrangements. As NIAC was a member of the Association prior to it being dissolved, the NIRC has applied to become an Associate member of the Association.

[4] Notice of the Association’s application was published in the Commonwealth of Australia Gazette Notices on 14 December 2016. There were no objections received.

[5] 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.

[6] 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 Mr Keith Rhoades, President dated 1 December 2016. Mr Rhoades stated that on 17 October 2016, the Association’s Annual Conference (Conference), by majority vote, passed resolutions to adopt the rules alterations consistent with rule 73(a) of the Association’s rules. Notice of the Conference was given in accordance with rule 32, a business paper identifying the proposed resolutions was sent to members prior to the conference in accordance with rule 32, and the Conference quorum requirement in rule 25 was satisfied when the resolutions were carried.

[7] 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 person 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 efficiently 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).

[8] 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.

[9] 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.

[10] 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 of the RO Act 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.

[11] 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.

[12] I therefore consent to rules alterations 1, 4 and 5 earlier identified under s.158 of the RO Act. The alteration will take effect on and from 1 March 2017. Rules alterations 2, 3, 6, 7 and 8, which are of a consequential nature, will be dealt with by the General Manager (or her delegate) for consideration under s.159.

VICE PRESIDENT

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