National Electrical and Communications Association

[2020] FWC 3549

[2020] FWC 3549

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act—Rules of organisations

National Electrical and Communications Association
(D2020/3)

DEPUTY PRESIDENT COLMAN MELBOURNE, 7 JULY 2020

Application for consent to alter the eligibility rules of an organisation

[1] On 10 March 2020, the National Electrical and Communications Association made an application for the Commission’s consent, pursuant to s 158(1) of the Fair Work (Registered Organisations) Act 2009 (Act), to alter its eligibility rules. The application sought to alter Rules 3 and 5, which concern membership, in order to modernise and clarify the eligibility rules of the association. The application arises in connection with a separate application under s 159 of the Act to alter other provisions of the association’s rules. That application is being dealt with by a Delegate of General Manager.

[2] The alteration to Rule 3 would change the description of the industry in connection with which the association is formed from one in connection with ‘Electrical Contracting Industry’ to one established ‘by electrical contractors and communication contractors in connection with the electro-technology industry’. The change would be effectuated through a new Rule 1.2. The alteration to Rule 5(a) would extend eligibility for membership of the association from ‘employers’ in relevant businesses to other legal persons such as bodies corporate and partnerships (but not employees) and also officer holders of the association. The change would be introduced through new Rules 8.1 and 8.2.

[3] Notice of the application was published in the Commonwealth of Australia Gazette on 30 March 2020. The period for lodgement of objections under regulation 124 of the Fair Work (Registered Organisations) Regulations 2009 (Regulations) expired on 5 May 2020. There were no objections.

[4] Section 158 of the 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…”

[5] An applicant is also required to comply with Regulation 121 of the Fair Work (Registered Organisations) Regulations 2009 (the Regulations), which provides:

“121 Application for consent to change of name or alteration of eligibility rules of an organisation (s 158 (1))

(1) An organisation may apply to the FWC for the consent of the FWC under subsection 158(1) of the Act to:

(a) change the name of the organisation; or

(b) alter the eligibility rules of the organisation.

(2) An application under subregulation (1) must:

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

(b) set out:

(i) if the application is for consent to change the name of the organisation—the proposed name and the reason for the proposal; or 

(ii) if the application is for consent to alter the eligibility rules of the organisation—the proposed alteration, the reason for the proposal and the effect of the proposal, in sufficient particularity to allow the proposal to be properly considered; and

(c) contain a declaration:

(i) that the change or alteration was made in accordance with the rules of the organisation; and 

(ii) stating the action taken under those rules to make the change or alteration; and 

(iii) verifying the facts stated in the application; and

(d) be lodged with the FWC; and

(e) if the application is for consent to alter the eligibility rules of the organisation—be lodged with a copy of the rules that are proposed to be altered.

(3) If an application under subregulation (1) is not in accordance with this regulation, the General Manager must tell the applicant how the application or statement does not comply with the regulation.

(4) An organisation that has a web site must publish on its web site a notice that it has lodged the application mentioned in subregulation (1).’

[6] Based on the materials submitted with the application, including the declaration dated 20 March 2020 of Mr Suresh Manickam, I am satisfied that the association has complied with the requirements of the Act and the Regulations.

[7] In relation to the requirement in s 158(2) of the Act, I am satisfied that the alteration of the eligibility rules has been made under the rules of the organisation, on the basis that the organisation convened a National Council Meeting on 21 November 2019, and that a quorate vote of the Council passed the alteration to the rules of the organisation. In relation to the requirement in s 158(4) of the Act, it is my opinion that there is no other organisation to which relevant persons could more conveniently belong and that would more effectively represent those persons as members.

[8] I consider that in all the circumstances it is appropriate to consent to the alteration. I consent to the alteration of the eligibility rules of the association. The alteration will take effect from 14 July 2020.

DEPUTY PRESIDENT

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