Local Government Association of New South Wales; Shires Association of New South Wales
[2012] FWA 5035
•14 JUNE 2012
[2012] FWA 5035 |
|
DECISION |
Fair Work (Registered Organisations) Act 2009
s.43(1) RO Act - Community of interest declaration
s.44 Application for approval for submission of amalgamation to ballot
Local Government Association of New South Wales; Shires Association of New South Wales
(D2012/204, D2012/205)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 14 JUNE 2012 |
Community of Interest re proposed amalgamation between the LGANSW & the SANSW - Application for approval for submission of amalgamation to ballot.
[1] On 20 April 2012 the Local Government Association of New South Wales (LGA) and the Shires Association of New South Wales (the applicants) filed an application pursuant to s.44 of the Fair Work (Registered Organisations) Act 2009 (the Act) for an order submitting the amalgamation of the two organisations to a ballot. They also filed an application for a Community of Interest Declaration pursuant to s.43 of the Act.
[2] A hearing was held on 12 June 2012 to consider submissions in relation to these two applications, in accordance with s. 53 of the Act. At that hearing the LGA was represented by Mr Peter Punch and the Shires Association by Mr Paul Murphy.
[3] Mr James Ryan, a Cessnock City Councillor, sought permission to make submissions at the hearing concerning the application that had been made under s.44 of the Act.
[4] Section 54 of the Act deals with submissions at amalgamation hearings such as this. It states:
1) ‘Submissions at a hearing arranged under subsection 43(3) or section 53 may only be made under this section.
2) Submissions may be made by the applicants.
3) Submissions may be made by another person only with the leave of FWA and may be made by the person only in relation to a prescribed matter.’
[5] Regulation 44 of the Fair Work (Registered Organisations) Regulations 2009 (the Regulations)sets out the prescribed matters about which a person other than an applicant in a hearing conducted under s.53 may make submissions. It provides as follows:
‘For subsection 54 (3) of the Act, the following matters are prescribed:
a) any proposed alteration to the name of an existing organisation concerned in the proposed amalgamation;
b) any proposed alterations of the eligibility rules of an existing organisation concerned in the proposed amalgamation.’
[6] Mr Ryan conceded that the submissions he wished to make were not about either of the prescribed matters. He argued that FWA nevertheless had the power to set aside the restrictions in s. 54. In particular, he contended that I could do so under r.179. This states, inter alia, that FWA may exempt a person from compliance with a procedural requirement under the Act or the Regulations if FWA is satisfied there are special circumstances. I ruled that the provisions of s.54 of the Act and r.44 were not ‘procedural requirements’ of the kind contemplated by r.179. In any case, I found that there were no special circumstances that would have justified exempting Mr Ryan from compliance with the requirements in those provisions. Accordingly, I declined to grant Mr Ryan permission to make submissions in relation to the two applications before me.
The Community of Interest Declaration
[7] Section 43 of the Act relevantly provides as follows:
‘43 Community of interest declaration
Existing organisations may apply for declaration
1) The existing organisations concerned in a proposed amalgamation may jointly lodge with FWA an application for a declaration under this section in relation to the amalgamation.
2) The application must be lodged:
a) before an application has been lodged under section 44 in relation to the amalgamation; or
b) with the application that is lodged under section 44 in relation to the amalgamation.
...
Making of declaration
4) If, at the conclusion of the hearing arranged under subsection (3) or section 53 in relation to the proposed amalgamation, FWA is satisfied that there is a community of interest between the existing organisations in relation to their industrial interests, FWA must declare that it is so satisfied.
Pre-conditions to making of declaration
...
6) FWA must be satisfied, for the purposes of subsection (4), that there is a community of interest between organisations of employers in relation to their industrial interests if FWA is satisfied that a substantial number of members of one of the organisations are:
a) eligible to become members of the other organisation or each of the other organisations; or
b) engaged in the same industry or in aspects of the same industry or similar industries as members of the other organisation or each of the other organisations; or
c) covered by the same modern awards as members of the other organisation or each of the other organisations; or
d) engaged in industries in relation to which there is a community of interest with members of the other organisation or each of the other organisations.
7) Subsections (5) and (6) do not limit by implication the circumstances in which FWA may be satisfied, for the purposes of subsection (4), that there is a community of interest between organisations in relation to their industrial interests.
[8] I must make a community of interest declaration in this case if I am satisfied that any of the circumstances described in s. 43(6) apply. I must also make such a declaration if I am satisfied that there is a community of interest between the applicants in relation to their industrial interests due to other circumstances.
[9] Based on the material accompanying the application, I am satisfied that there are a substantial number of members of the LGA that are eligible to become members of the Shires Association (as well as vice versa). Indeed, any member of one of the organisations is eligible to be a member of the other, with the exception of the Aboriginal Land Council, which is only eligible for membership of the LGA. Moreover the members of both organisations are engaged in the same industry or activity, namely local government in the State of New South Wales. I am satisfied that there is a community of interest between the two applicant organisations. I am required therefore to make an appropriate declaration to that effect.
The Application for Approval for Submission of Amalgamation to Ballot
[10] Subsection 55(1) of the Act states:
1. ‘If, at the conclusion of the hearing arranged under section 53 in relation to a proposed amalgamation, FWA is satisfied that:
a) the amalgamation does not involve the registration of an association as an organisation; and
b) a person who is not eligible for membership of an existing organisation concerned in the amalgamation would not be eligible for membership of the proposed amalgamated organisation immediately after the amalgamation takes effect; and
c) any proposed alteration of the name of an existing organisation concerned in the amalgamation will not result in the organisation having a name that is the same as the name of another organisation or is so similar to the name of another organisation as to be likely to cause confusion; and
d) any proposed alterations of the rules of an existing organisation comply with, and are not contrary to, this Act, the Fair Work Act, modern awards or enterprise agreements, and are not contrary to law; and
e) any proposed de-registration of an existing organisation complies with this Act and is not otherwise contrary to law;
f) FWA must approve the submission of the amalgamation to ballot.’
[11] The proposed amalgamation is by way of the ‘host’ method, in other words the LGA will be the ‘host’ for the amalgamated body, in that upon the amalgamation taking effect the name and rules of the LGA will change to the name and rules of the amalgamated body, and the registration of the Shires Association will be cancelled. The membership eligibility coverage of the amalgamated body will be identical with that of the collective coverage of the LGA and the Shires Association.
[12] It is clear therefore that the amalgamation does not involve the registration of an association as an organisation; and a person who is not eligible for membership of an existing organisation concerned in the amalgamation would not be eligible for membership of the proposed amalgamation organisation after the amalgamation takes effect. I am also satisfied that the proposed name of the amalgamated organisation, ‘the Local Government and Shires Association of New South Wales’ will not result in it having a name that is the same as the name of another organisation or a name that is so similar to the name of another organisation as to be likely to cause confusion.
[13] I am also satisfied that the proposed rules of the amalgamated organisation comply with, and are not contrary to, the Act, the Fair Work Act, modern awards or enterprise agreements, and are not otherwise contrary to law. Accordingly I must approve the submission of the amalgamation ballot.
[14] I have made orders flowing from this decision. They are to be found at [PR525080]
SENIOR DEPUTY PRESIDENT
Appearances:
Mr P Punch,for the Local Government Association of New South Wales
Mr P Murphy, for the Shires Association of New South Wales
Mr J Ryan, on his own behalf
Hearing details:
12 June 2012, Sydney
Printed by authority of the Commonwealth Government Printer
<Price code C, PR525114>
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