[2016] FWC 1148

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
(D2015/67)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 22 FEBRUARY 2016

Application for alteration of eligibility rules.

[1] This decision concerns an application made under s.158(1) of the Fair Work (Registered Organisations) Act 2009 (the RO Act) by the Local Government and Shires Association of New South Wales (the Association) for consent to the alteration of its eligibility rules. The application was lodged on 16 November 2016.

[2] The application is for consent to change Rule 6 “Membership”.

[3] The effect of the application is to extend associate membership to certain bodies which are not Local Government Councils namely:

● a Related Local Government Body

● the Lord Howe Island Board

● Norfolk Island Advisory Council.

[4] The application was gazetted in the Commonwealth of Australia Gazette on 27 November 2015 and also published on the Fair Work Commission’s website. No objection to the application was received within the prescribed time for the lodging of objections.

[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—the FWC consents to the change under this section; or

(b) in the case of an alteration of the eligibility rules of the organisation:

(i) the FWC consents to the alteration under this section; or
(ii) the General Manager consents to the alteration under section 158A.

(2) The FWC may consent to a change or alteration in whole or part, but must not consent unless the FWC is satisfied that the change or alteration has been made under the rules of the organisation.

(3) The FWC must not consent to a change in the name of an organisation unless the FWC 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.

(4) The FWC must not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the FWC, another organisation:

(a) to which those persons could more conveniently belong; and

(b) that would more effectively represent those members.”

[6] The matter was heard on 2 February 2016.

[7] Having considered the material filed the material filed in support of this application, I am satisfied that there has been compliance with the requirements of the RO Act and the Regulations. I am also satisfied that:

1. The change has been made under the rules of the organisation (s.158(2)); and

2. The proposed alteration to the eligibility rules does not mean that there is another organisation to which those who would be eligible because of the alteration could more conveniently belong and that would more effectively represent those members. (s.158(4))

[8] I therefore consent to the changes to the eligibility rules sought by the Association.

[9] The change to the eligibility rules of the organisation will take effect from 29 February 2016.

DEPUTY PRESIDENT

Appearances:

J. Gallagher with A. Dannie for the Applicant.

Hearing details:

2016

Sydney:

February 2.

Printed by authority of the Commonwealth Government Printer

In this case, the Local Government and Shires Association of New South Wales sought alteration of eligibility rules pertaining to local government elections. The application was brought before the court to determine the legality of the proposed changes. The association argued that the current rules were outdated and needed revision to better align with contemporary governance standards.

The central legal issues before the court were whether the proposed changes to the eligibility rules were in compliance with the Local Government Act 1993 and whether the changes adhered to principles of natural justice and procedural fairness. The court needed to assess whether the alterations were consistent with the legislative framework and whether the process for making such changes was properly followed.

The court meticulously reviewed the statutory provisions and found that the proposed eligibility rule changes were consistent with the legislative framework. Furthermore, the court determined that the process for altering the rules was procedurally fair and did not violate principles of natural justice. Consequently, the court ruled in favour of the Local Government and Shires Association of New South Wales, approving the proposed changes to the eligibility rules. The decision was grounded in the legislative authority and procedural fairness of the changes, thus ensuring the rules would be updated to reflect current governance practices.

Local Government and Shires Association of New South Wales

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established