National Retail Association Limited, Union of Employers

[2018] FWC 944

[2018] FWC 944

FAIR WORK COMMISSION

DECISION

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

National Retail Association Limited, Union of Employers
(D2017/9)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 2 MARCH 2018

Application for registration as an organisation - association of employers - transitionally registered organisation - application granted.

[1] The National Retail Association Limited, Union of Employers (NRA) has applied under s.18(a) of the Fair Work (Registered Organisations) Act 2009 (RO Act) for registration as a federally registrable association of employers. The application was made on 6 October 2017 (Originating Application). The NRA is a transitionally registered in the federal jurisdiction. The application and accompanying statutory declaration were signed by Ms Dominique Elaine Marie Lamb, Chief Executive Officer of the Association (Ms Lamb).

[2] On 2 November 2017, the NRA filed an amended application (Amended Application) in response to some procedural deficiencies that had been identified by the Registered Organisations department at the Fair Work Commission (Commission). The Amended Application was signed by Ms Lamb, however, the accompanying statutory declaration was signed by Mr Mark Brodie, Chairman of the Board (Mr Brodie) in his capacity as an elected officer of the NRA.

[3] Notice of the application was published in the Commonwealth of Australia Gazette in accordance with regulation 22 of the Fair Work (Registered Organisations) Regulations 2009 (Regulations) on 6 November 2017. The period within which objections could be made on 11 December 2017. No objections were received in this period.

Background and factual context

Overview of transitional recognition

[4] Prior to the amendments made to the Workplace Relations Act 1996 (WR Act), by the Workplace Relations Amendment (Work Choices) Act 2005 (Work Choices Amendment Act), a state-registered association was unable to represent its members’ interests at a federal level. The amendment to the WR Act made by the Work Choices Amendment Act enabled a state-registered association to apply to a then Registrar, for transitional registration in order to allow the association the capacity to represent its members’ in the federal system.

[5] Similarly, upon the enactment of the RO Act and upon successful application to the Commission, a transitionally registered organisation became a transitionally recognised association. Organisations are able to apply under either Schedule 1 (as a transitionally recognised association [TRA]) or Schedule 2, (as a recognised State-registered association [RSRA]) to become a federally recognised organisation. An organisation that was a transitionally registered organisation under the WR Act continues to be recognised in the federal system as a TRA until the five year anniversary of the commencement of Part 2, Schedule 2 of the Fair Work (Transitional and Consequential Amendments) Act 2009 (TPCA) or a later day as prescribed by the Regulations (see Schedule 1).

[6] Clause 6(1)(c)(i) of Schedule 1 of the RO Act provides that the transitional recognition of a TRA will end on the fifth anniversary of the earliest day on which an organisation can make an application in accordance with s.158A(2) of the RO Act unless an extension has been granted by the Commission. Section 158A(2) of the RO Act provides that an application cannot be made under that section before 1 January 2011 or such later day as the Minister declares in writing. On 13 December 2013 the then Minister declared 1 January 2012 as the earliest date under s.158A(2) of the RO Act upon which an application under s.158A(1) of the RO Act may be made (Fair Work (Registered Organisations) Declaration 2010).

The NRA

[7] The NRA is a union of employers currently registered in the Queensland Industrial Relations Commission and has recognition as a TRA. 1 The NRA has no federal counterpart.2

[8] The NRA (formerly, the United Retailers Institute (Queensland) Limited), was first registered as an association on 25 September 1994 and it represents the interests of retail, fast food and the broader services sector to an estimated number of businesses exceeding 19,000 nationally. 3 Its membership is made up of businesses of various sizes, including micro businesses, SME’s and national as well as international businesses.4

[9] On 29 October 2010, the Delegate of the General Manager of Fair Work Australia (as it was then known) granted to the NRA transitional recognition pursuant to Schedule 1, clause 2 of the RO Act.

[10] On 5 December 2016, the NRA applied to the Commission seeking an extension of its transitional recognition because in the absence of it successfully doing so, its ability to represent its members’ interests would have ceased on 1 January 2017. On 22 December 2016, Vice President Hatcher extended the NRA’s transitional recognition until 1 January 2018. 5

[11] As noted above, on 6 October 2017, the NRA made an application to the Commission for registration as a federally registrable association of employers. The matter was allocated to me on 13 December 2017. On 18 December 2018, Mr Alexander Millman, Senior Workplace Relations Advisor of the NRA (Mr Millman), wrote to my chambers enquiring as to whether the application for registration would be dealt with prior to 1 January 2018. My associate wrote back to Mr Millman on 19 December 2018 advising that I would not be able to deal with the application prior to the expiration of transitional recognition and outlined that the NRA may wish to consider making any such application that it deemed necessary.

[12] On 20 December 2017, the NRA made an urgent application to the Commission for an extension of its transitional recognition (Extension Application). That matter was also allocated to me. At the time the Extension Application was made, I was not satisfied that the NRA had adequately identified with sufficient particularity or substantiated the extenuating circumstances said to exist warranting an extension pursuant to clause 6(1)(c)(iii) of the RO Act. However, so as not to unfairly prejudice the NRA and its members, I made a provisional or interim order granting recognition of the NRA as a TRA on 29 December 2017. 6 I also listed the matter for hearing on 17 January 2018 to allow the NRA an opportunity to address the concerns that I held regarding the extenuating circumstances that were said to exist warranting a further extension.

[13] On 17 January 2018, I granted the NRA a further extension until 1 January 2019. 7

[14] I now turn to consider whether the NRA has met and complied with the requirements set out in the RO Act and the Regulations in order to become a federally registered organisation.

The Legislation

[15] Section 18A of the RO Act sets out when an association of employers is a federal registrable association. Section 19 sets out when the Commission must register a federally registrable association of employers. 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.

(2)  If:

(a)  there is an organisation to which the members of the association might belong; and
(b)  the members of the association could more conveniently belong to the organisation; and
(c)  the organisation would more effectively represent those members than the association would;
the requirements of paragraph (1)(j) are taken to have been met if the FWC accepts an undertaking from the association that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the organisation and the eligibility rules of the association.

(3) Without limiting the matters that the FWC may take into account in considering, under subparagraph (1)(j)(ii), the effectiveness of the representation of an organisation or association, the FWC must take into account whether the representation would be consistent with Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act.
(4)  In applying paragraph (1)(e), the FWC must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under section 28 had the association been registered when the conduct occurred.
(5)  The FWC must not, under this section, grant an application for registration of an association of employers or employees registered under a State or Territory industrial law if the association has a federal counterpart.”

[16] An application by an association must also meet the relevant requirements prescribed in the Regulations. Relevantly, the Regulations 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 FWA; 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 FWA an additional statement supporting the application.”

[17] In addition to the application requirements, I must also be satisfied that the rules governing the association meet the requirements set out in Part 2 of Chapter 5 the RO Act.

Criteria for registration

RO Act

Section 19(1)(a)(i) and (ii)

[18] Section 6 of the RO Act sets out the definition of what constitutes a “constitutional corporation”. On the basis of the material before me I am satisfied that the NRA is an incorporated body and that a significant purpose of its operation is to engage in trading activities.
[19] I am also satisfied that the NRA is established to further and protect the interests of its members and the retail industry as a whole. 8

Section 19(1)(c)

[20] At the time the Amended Application was first lodged, I was not satisfied that the NRA had provided sufficient information to fulfil this requirement. The Amended Application contained a list of all of the NRA’s members, however, it did not specify how many employees each of those members so engaged. On 22 December 2017, my associate wrote to the NRA, outlining, inter alia, this concern (22 December correspondence).

[21] On 16 January 2018, the NRA provided further information with respect to this requirement. That information discloses that there are in the order of 566 members of the NRA and that, those members employ approximately 176,013 employees. 9

[22] Additionally, those submissions disclose that, in aggregate, each of the NRA’s members employed 310 employees throughout the 6 months prior to the application. 10

[23] I am satisfied on the basis of the information contained within the further submissions and accompanying statutory declaration that 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.

Section 19(1)(e)

[24] I am satisfied that based on the NRA’s rules, its evident adherence to the requirements of Queensland legislation and significant existence as an industrial organisation that the NRA would conduct its affairs in a wat that meets the obligations of an organisation under the RO Act and the Fair Work Act 2009 (FW Act).

Section 19(1)(f)

[25] Regulation 19(1)(f) of the Regulations states that I must be satisfied that the proposed organisation has rules that make provisions as required by the RO Act to be made by the rules of organisations. Section 141 of the RO Act, inter alia, outlines a number of the rules that must be contained within a registered organisations’ rules.

[26] I am satisfied having regard to both regulation 19(1)(f) and the appropriate sections of the RO Act, the rules of the NRA meet the requirements set out in the Act.

Section 19(1)(g)

[27] I am satisfied having regard to the material before me, that the NRA 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.

Section 19(1)(h)

[28] In the Amended Application filed on 2 November 2017, the NRA filed the minutes of the meeting at which the resolution in favour of the registration was made. 11 The minutes indicated that the meeting was quorate and that the motion to register was carried without dissent. However, no additional information was provided concerning whether the resolution was passed in accordance with the NRA’s rules as required by the RO Act.

[29] I outlined this concern in the 22 December correspondence to the NRA and in response, the NRA provided further information addressing this issue in the 16 January submissions.

[30] The NRA submitted as follows:

“12. Under the rules of the Applicant as in force immediately prior to the Special General Meeting of 6 September 2017 (the SGM), the meeting was quorate in accordance with rule 17.3(a).

13. Rule 17.3(a) of the rules of the Applicant as in force immediately prior to the SGM stated that:

“No business shall be transacted at any general meeting unless a quorum of members or their authorised representatives is present at the time when the meeting proceeds to business. A total of seven members, or authorised representatives of members, or any combination of both, personally present shall be a quorum.”

14. The minutes of the SGM demonstrate that one member (Tatts Lotteries Group) was represented by its employee, Mr Antony Moore. Seven other members were represented in person by authorised representatives in the form of proxies

15. As such, with the presence of eight members in person by their employees and/or by authorised representatives in the form of proxies, the SGM was quorate as required by rule 17.3(a).” 12 [Footnotes omitted]

[31] Having regard to the NRA’s rules and supplementary submissions, I am satisfied that 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.

Section 19(1)(i)

[32] I am satisfied that the registration of the NRA would further Parliament’s intention in enacting the RO Act and the object set out in section 3 of the FW Act.

Section 19(1)(j)

[33] It is not suggested otherwise and I am satisfied that there is no organisation to which members of the NRA could more conveniently belong and that would more effectively represent those members.

The Regulations

Regulation 21(1)(a), (b), (c), (d)(ii), (iv), (v) and (vi)

[34] Having regard to the material before me, I am satisfied that the requirements contained in the above sub-regulations in each relevant instance have been met.

Regulation 21(1)(d)(i)

[35] In the Amended Application, the NRA filed a Form 48 – Amended Application for directions on procedure. In the application, the NRA sought, in effect, an order that the member list containing its member’s names, be sealed and only made available upon application to the Commission. The documentation that the NRA submitted at the time listed all of its members and identified their postal addresses as being “C/- NRA” and submitted that it did so to protect their member’s privacy.

[36] However, in the 16 January submissions, the NRA indicated that it does not wish to pursue its application and consequently withdrew it. 13 Although the application to suppress the information was withdrawn, it still remained that the necessitated documentary information had not been provided in accordance with the Regulations.

[37] On 14 February 2018, my associate spoke to Mr Millman and enquired as to the NRA’s position regarding the provision of its members postal addresses and in correspondence to my chambers on the same day, the NRA advised that it would provide the required documentation. On 16 February 2018, the NRA provided my chambers with a document containing the postal addresses of its members.

[38] Based on the documentation provided on 16 February 2018, I am satisfied that this regulatory requirement has been fulfilled.

Regulation 21(1)(d)(iii)

[39] The Amended Application filed by the NRA failed to identify the occupations of the all of the persons holding office in the NRA and I outlined this concern to the NRA in the 22 December correspondence.

[40] In the 16 January submissions, the NRA addressed this concern and I am satisfied that this requirement has been complied with.

Conclusion

[41] I am satisfied that the grounds for registration as an organisation are met in each instance and I therefore grant the application for registration. The NRA will be registered as an organisation under the RO Act with effect on and from Friday, 9 March 2018.

DEPUTY PRESIDENT

Appearances:

Mr A Herbert of Counsel for the National Retail Association Limited, Union of Employers

Hearing details:

Melbourne with Video Link to Brisbane.

17 January.

2018.

Written submissions:

Supplementary Submissions and Statutory Declaration of Ms Dominique Lamb filed on 27 December 2017

Further Supplementary Submissions and Statutory Declaration of Mr Mark Brodie dated 16 January 2018

<PR600370>

 1   Statutory Declaration of Ms Dominque Elaine Marie Lamb, dated 21 December 2017 at [3] – [4]

 2   Ibid at [5]

 3   Ibid at [6]

 4   Ibid

 5   [2016] FWC 8985

 6   PR599137

 7   Transcript dated 17 January 2018 and [2018] FWC 332

 8   See for example, Rules of the National Retail Association Limited, Union of Employers at Rule 3

 9   Statutory Declaration of Mr Mark Vincent Brodie, dated 16 January 2018 at [15]

 10   Applicant’s Supplementary Submissions, dated 16 January 2018 at [7] – [10]

 11   Statutory Declaration of Ms Dominque Elaine Marie Lamb, dated 5 October 2017 at DL3

 12   Applicant’s Supplementary Submissions, dated 16 January 2018

 13   Ibid at [18]

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