Motor Trades Association of Queensland Industrial Organisation of Employers

[2014] FWC 8223

[2014] FWC 8223

FAIR WORK COMMISSION

DECISION

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

Motor Trades Association of Queensland Industrial Organisation of Employers
(D2014/58)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 19 NOVEMBER 2014

Application for registration as an organisation - association of employers - transitionally registered organisation - Rule 25 of the Registered Organisations Act.

[1] This decision concerns an application for registration as an organisation under the Fair Work (Registered Organisations) Act 2009 (“the RO Act”) by an association of employers called the Motor Trades Association of Queensland Industrial Organisation of Employers (“the association”).

[2] The application under s.18(a) of the RO Act was made on 8 July 2014, and published in the Government Gazette on 20 August 2014. The association is transitionally registered in the federal jurisdiction.

[3] The period within which objections could be made closed on 24 September 2014. No objections were received in this period and there is no challenge to the application as a consequence.

[4] The application was subject to a conference on 10 October 2014. Two matters concerning the appropriateness of the rules of the association and/or their drafting were discussed, and the association was provided with an opportunity by way of a grant of leave under s.25(1) of the RO Act to alter its rules so as they might conform with the RO Act.

[5] The association altered its rules accordingly in accordance with its rules, and those rules as altered were approved by the Registrar of the Industrial Relations Commission Queensland.

[6] The rules that are before me are the rules of the association as they will be upon registration as an organisation being granted. The requirements of s.19(1)(f) of the RO Act are discharged as a consequence (see below).

[7] The application was listed for hearing on 19 November 2014. Representation was afforded by Mr Ted Kowalski, Manager Industrial Relations for the applicant association. On that occasion the certificate of the alteration of the rules by the Industrial Registrar for the Industrial Relations Commission Queensland along with the altered rules of the association were taken into evidence, along with the declarations and annexure supporting the application.

Background

[8] As is implied above, the association is currently registered under the Industrial Relations Act 1999 (Qld) and is a transitionally registered organisation under the RO Act.

[9] Its industry calling is described in the association’s rules (at clause 3 thereof) as:

(a) “Eligible Persons” means all persons who fulfil the following conditions of eligibility for membership of MTA Queensland.

The person:

(i) must be engaged or usually engaged as an employer within Queensland in a calling that is a registered calling of MTA Queensland or an officer or principal (not an employee) of a firm or corporation so engaged; and

(ii) must not be a bad character; and

(iii) must not have broken one or more of the rules of MTA Queensland where the said breach has resulted in the termination of the membership of the person in MTA Queensland;

(iv) must not have taken action against the Objects which MTA Queensland has been established.

(b) “Member” means any person or organisation who has been admitted to membership of MTA Queensland includes a representative or additional representative nominated in accordance with the provisions of the rules: the term “Member” does not include a person or organisation has been admitted to membership as an associate member.

The legislation

[10] Section 18A of the RO Act sets out when an association of employers is a federally registrable association. Section 19 sets out when the Commission must register a federally registrable association of employers, and it provides as follows:

19 Criteria for registration of associations other than enterprise associations

(1) The FWC must grant an application for registration made by an association (other than an enterprise association) that, under section 18, may apply for registration as an organisation if, and only if:

(a) the association:

(i) is a genuine association of a kind referred to in paragraph 18(a) or (b); and

(ii) is an association for furthering or protecting the interests of its members; and

(b) in the case of an association of employees--the association is free from control by, or improper influence from, an employer or by an association or organisation of employers; and

(c) in the case of an association of employers--the members who are employers have, in the aggregate, throughout the 6 months before the application, employed on an average taken per month at least 50 employees; and

(d) in the case of an association of employees--the association has at least 50 members who are employees; and

(e) the FWC is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Act and the Fair Work Act; and

(f) the rules of the association make provision as required by this Act to be made by the rules of organisations; and

(g) the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and

(h) a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation; and

(i) the registration of the association would further Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act; and

(j) subject to subsection (2), there is no organisation to which members of the association might belong or, if there is such an organisation, it is not an organisation:

(i) to which the members of the association could more conveniently belong; and

(ii) that would more effectively represent those members.

[11] The application by the association must also meet the relevant requirements of the Fair Work (Registered Organisations) Regulations 2009 (“the RO Regulations”), which provide as follows:

21 Application for registration (s 18)

(1) An application by an association under section 18 of the Act for registration as an organisation must:

(a) be in the form set out in the Procedural Rules or in a form otherwise approved by the President; and

(b) contain a declaration, made by an officer of the association authorised to make the declaration, verifying the facts stated in the application and in any document lodged with the application; and

(c) be lodged with the FWC; and

(d) be lodged with the following documents:

(i) a list of the members of the association, showing the name and postal address of each member;

(ii) a list of the offices in the association and in each branch of the association;

(iii) a list of the names, postal addresses and occupations of the persons holding the offices;

(iv) a list of the branches of the association, showing for each branch its name and the location of its office;

(v) the rules of the association and the rules of each of its branches;

(vi) a copy of a resolution in favour of the registration of the association as an organisation passed in accordance with the rules of the association by a majority of the members of the association present at a general meeting of the association or by an absolute majority of the committee of management of the association.

(2) An association applying for registration may lodge with the FWC an additional statement supporting the application.

Criteria for registration

[12] On the basis of the material before me (including the statutory declaration provided under Regulation 21 of the RO Regulations), all of which is unchallenged, I am satisfied that:

• the applicant association is a genuine association of employers, and is so for the requisite purpose (s.19(1)(a)(i) and (ii) of the RO Act);



• the members who are employers (of which there were some 341 at the time of the application) have, in the aggregate, throughout the 6 months before the application, employed on an average taken per month at least 50 employees (s.19(1)(c) of the RO Act);



• that the association will conduct its affairs in a way that meets the obligations of an organisation under the RO Act and the Fair Work Act (s.19(1)(e) of the RO Act);



• the rules of the association make provision as required by the RO Act to be made by the rules of organisations (s.19(1)(f) of the RO Act);



• the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion (s.19(1)(g) of the RO Act);



• a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation (s.19(1)(h) of the RO Act);



• the registration of the association would further Parliament’s intention in enacting this Act and the object set out in section 3 of the Fair Work Act (s.19(1)(i) of the RO Act; and



• there is no organisation to which members of the association might belong (s.19(1)(j) of the RO Act.

[1] The requirements of s.19 of the RO Act are satisfied in each relevant instance, as are the requirements of Regulation 21 of the RO Regulations.

[2] The applicant association is also a federally registrable employer association for the purposes of s.18A of the RO Act. It has also met the various requirements of the RO Regulations, as set out above.

Conclusion

[3] I am satisfied that the grounds for registration as an organisation are met in each instance. I will grant the application for registration. The association will be registered as an organisation under the RO Act with effect from 26 November 2014.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr T. Kowalski, of the applicant association

Hearing details:

Brisbane

2014

19 November

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