National Retail Association Limited, Union of Employers

[2016] FWC 8985

[2016] FWC 8985

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
Sch. 1, Cl. 6(2) RO Act - Application for an extension by a TRA

National Retail Association Limited, Union of Employers
(D2016/72)

VICE PRESIDENT HATCHER SYDNEY, 22 DECEMBER 2016

Application/Notification for an extension by a transitionally recognised association by The National Retail Association Limited, Union of Employers.

Introduction

[1] On 5 December 2016 the National Retail Association Limited, Union of Employers (NRA) a transitionally recognised association (TRA), lodged an application pursuant to clause 6(2) of Schedule 1 of the Fair Work (Registered Organisations) Act 2009 (RO Act) seeking an extension of its transitional recognition. The application was signed on the NRA’s behalf by Mr Troy Wild, the Director of the Legal Division. 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). In the absence of an extension being granted, the transitional recognition of the NRA will therefore cease on 1 January 2017.

[2] Clause 6(2) of Schedule 1 of the RO Act read in conjunction with cl.6(1)(c)(ii) provides that the Commission may, on application, grant a TRA an extension of its recognition until 1 January 2018 in prescribed circumstances. Clause 6(1)(c)(ii) provides that the recognition of a TRA will end on the sixth anniversary of the earliest date on which a s.158A(1) application may be made. Clause 6(2) provides:

(2)  The FWC may, on application by a transitionally recognised association, grant the association an extension for the purposes of subparagraph (1)(c)(ii) or (1A)(c)(ii) if the FWC is satisfied that the association has made progress towards:

(a) becoming an organisation; or

(b)  rationalising its internal affairs with those of its federal counterpart.

[3] The NRA cannot satisfy the second condition in paragraph (b) of cl.6(2) because it does not have a “federal counterpart”. The term “federal counterpart” is defined in s.9A(1) of the RO Act to mean an organisation prescribed to be a federal counterpart of a particular association by the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations). Schedule 1A does of the RO Regulations, which sets out prescribed federal counterparts for the purpose of s.9A(1), does not identify any federal counterpart to the NRA. The NRA’s application confirmed that it has no federal counterpart.

[4] Accordingly the NRA’s application may only succeed on the basis that it satisfies the criterion in paragraph (a) of cl.6(2) - that is, it has made progress towards “becoming an organisation”. An “organisation” is defined in s.6 of the RO Act as “an organisation registered under this Act”. The test is therefore whether the NRA has made progress towards achieving registration as an organisation under the RO Act.

Evidence and submissions

[5] In support of its application the NRA relied upon a statutory declaration made by Ms Dominique Lamb, its Chief Executive Officer, on 19 December 2016. The declaration discloses the following:

• On 26 August 2011, the NRA’s board discussed its status as a TRA and the need to obtain registration under the RO Act, and on 20 July 2012, this was further discussed by the board.



• On 20 July 2016, in response to correspondence with the Commission dated 15 July 2016 reminding it of the pending expiry of its status as a TRA absent and extension being granted the NRA wrote to the Commission requesting further information in relation to the process for becoming registered under the RO Act.



• On 22 August 2016, a legal memorandum concerning registration was provided to the NRA for circulation to the board.



• On 17 October 2016, after receiving further information, the NRA wrote to the Commission providing a draft copy of the NRA’s proposed rules should it become apply to become a registered organisation, and sought the Commission’s feedback on the proposed rules.



• On 4 November 2016, the NRA sent further correspondence to the Commission following up its earlier correspondence.



• On 14 November 2016, the NRA received correspondence from the Commission attaching a checklist assessing the NRA’s proposed rules against the relevant requirements of the RO Act.



• On 25 November 2016, the board was updated in relation to the draft proposed rules to be lodged as part of the application for registration to the Commission. The board also discussed the need to engage counsel to provide further advice on its eligibility rules.



• On 13 December 2016, the NRA engaged counsel to provide advice in relation to proposed changes to the NRA’s eligibility rules for the purpose of a registration application.



• It is anticipated that once the advice of counsel has been received, the proposed changes will be put forward to the NRA’s board for consideration and approval. This is likely to occur at the NRA’s next board meeting on 24 February 2017.

[6] It was submitted before me, on instructions, that the NRA CEO Ms Lamb intended to recommend to the board that an application for registration under the RO Act be made once counsel’s advice was received, and that it was anticipated that an application for registration would follow.

Conclusion

[7] It is clear that, prior to July 2016 when it was reminded that its status as a TRA would expire at the end of the year unless extended, the NRA had made no progress towards becoming an organisation and had essentially sat on its hands for a number of years. The steps it has taken since July 2016 have been minimal, and have mainly been of an exploratory nature. Not only has no application for registration not yet been filed, there is no evidence that the NRA’s board has even made a firm decision to apply for registration.

[8] If the test in clause 6.2(a) was for “significant” or “substantial” progress to have been made towards registration as an organisation, then on the material before me I would find that the test had not been met. However, all that is required is that “progress” has been made. It seems to me that if some discernible steps have been taken towards the objective of registration under the RO Act, that would constitute “progress” for the purpose of cl.6(2)(a). I am satisfied, although barely, that NRA has made some such progress.

[9] Accordingly, the jurisdictional precondition in cl.6(2)(a) of Schedule 1 of the RO Act is satisfied, and I consider it appropriate to exercise my discretion in favour of granting an extension of the NRA’s transitional recognition until 1 January 2018.

[10] I therefore order as follows:

Pursuant to clause 6(2) of Schedule 1 of the Fair Work (Registered Organisations) Act 2009, the transitional recognition of the National Retail Association Limited, Union of Employers is extended until 1 January 2018.

VICE PRESIDENT

Appearances:

T. Wild for the National Retail Association Limited, Union of Employers

Hearing details:

2016.

Sydney:

20 December.

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