National Road Transport Operators Association (NatRoad)

[2014] FWC 1237

[2014] FWC 1237

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.18A RO Act—Registration of association

National Road Transport Operators Association (NatRoad)
(D2013/101)

VICE PRESIDENT WATSON SYDNEY, 21 FEBRUARY 2014

Application for leave to be granted to Applicant to change its rules - technical objections - Fair Work (Registered Organisations) Act 2009 - s.25.

Introduction

[1] Following my decision of 22 January 2014 granting an exemption to National Road Transport Operators Association (NatRoad) from compliance with Regulation 21, I relisted the matter for hearing the foreshadowed application by NatRoad under s.25 of the Fair Work (Registered Organisations) Act 2009 (the RO Act) for leave to amend its rules to comply with the RO Act and for other purposes.

[2] Section 25 provides:

“25 Applicant for registration may change its name or alter its rules

(1) The FWC may, on the application of an association applying to be registered as an organisation, grant leave to the association, on such terms and conditions as the FWC considers appropriate, to change its name or to alter its rules:

(a) to enable it to comply with this Act; or

(b) to remove a ground of objection taken by an objector under the regulations or by the FWC; or

(c) to correct a formal error in its rules (for example, to remove an ambiguity, to correct spelling or grammar, or to correct an incorrect reference to an organisation or person).

Note: Paragraph (a)—in order for an organisation to comply with this Act, its rules must not be contrary to the Fair Work Act (see paragraph 142(1)(a) of this Act).

(2) An association granted leave under subsection (1) may change its name, or alter its rules, even though the application for registration is pending.

(3) Rules of an association as altered in accordance with leave granted under subsection (1) are binding on the members of the association:

(a) in spite of anything in the other rules of the association; and

(b) subject to any further alterations lawfully made.”

The Application

[3] The particulars of the s.25 application are as follows:

“1. The Applicant (Natroad) submitted a document titled "Rules of the Association" (the proposed Rules) at Schedule 5 to its Application for Registration {the application), lodged with the Commission on 17 January 2013.

2. The proposed Rules had been developed in anticipation of Registration. It was Natroad's intention that the proposed Rules would become the Rules of the Registered Organisation. This path had been endorsed by the Natroad membership prior to Natroad filing the application.

3. The proposed Rules have been available on the Commission website from the time the application was gazetted, on 13 February 2013.

4. Natroad is a constitutional corporation. At the time of filing the application, Natroad had a company Constitution, which was registered with ASIC and was publicly available {the Constitution).

5. Following the decision of Vice President Watson on 26 July 2013, Natroad took steps to replace the Constitution with the proposed Rules. A resolution was passed to that effect at Natroad's AGM on 31 August 2013, and a document was thereafter lodged with and subsequently registered by ASIC. The attached schedule compares the changes now required to be undertaken in order for the existing ASIC-registered rules to become the proposed Rules.

6. At a meeting of Natroad's National Council on Friday 29 November 2013, a resolution was unanimously passed to substitute the currently registered Rules and Constitution with the proposed Rules.

7. Leave is therefore sought by Natroad, pursuant to section 25 of the Act, to alter its Rules by adopting in total the proposed Rules.”

[4] The actual rule changes are set out in Schedule A to the application. The schedule is in the form of a table which contains the rule registered with ASIC on the left hand side and the altered corresponding rule on the right hand side. Ms Ryan, solicitor for NatRoad deposed in an affidavit tendered in the proceedings that the rules were varied at a meeting of the National Council on 29 November 2013 and that if leave to amend its rules is granted, NatRoad will lodge the amended rules with ASIC and proceed with its application for registration on the basis of the identical set of rules.

[5] The orders sought as a result of the application are as follows:

“1. Pursuant to section 25 of the Fair Work (Registered Organisations) Act 2009, leave be granted to the Applicant to change its Rules in the terms of the Application dated 16 December 2013 and the schedule attached to that application.

2. Subsequent to the grant of leave and in accordance with regulation 28 of the Fair Work (Registered Organisations) Regulation 2009, the Applicant is to lodge with the Fair Work Commission:

(a) 2 copies of the altered Rules; and

(b) a declaration, signed by an officer of NatRoad authorised to sign the declaration, verifying the alterations.

3. Within 7 days of carrying out Order 2, NatRoad shall serve a copy of the alteration on ARTIO, the TWU and any other objector.

4. The matter is listed for further directions on a date to be fixed.”

Should Leave be granted?

[6] Counsel for NatRoad submitted that each of the rule changes fall within the terms of s.25(1) and are either required to ensure compliance with the RO Act, required to remove grounds of objection regarding technical objections or are of a minor typographical nature. NatRoad has sought advice from the Compliance Branch of the Fair Work Commission in order to ensure that its rules comply with the RO Act. The changes made to its rules reflect the advice on its rules received from the compliance branch.

[7] An objector to the registration of NatRoad, the Australian Road Transport Industrial Organisation (ARTIO) submits that the process adopted by NatRoad is not consistent with dicta from other cases, recently set out in the Full Bench decision in this matter of 13 November 2013 1, to the effect that an application of this nature contemplates a three step process - the making of an application, granting of leave and the alteration of the rules in that order. ARTIO Submits that as the order of the steps is different to this dicta the application should not be granted.

[8] It has been consistently stated in applications for registration that technical obstacles should not be placed in the way of an application of this nature. I am satisfied that the objective of NatRoad in making this application is to ensure that its rules comply with the RO Act. It has acknowledged the need for such changes and been open about its intention of making the changes from the time when the application for registration was made in January 2013. I do not consider that the vote in favour of the changes in November 2013 is a barrier to granting the requisite leave to amend. I will grant leave to amend the rules in accordance with the application and make the orders sought by NatRoad. Those orders are made concurrently with the handing down of this decision 2.

VICE PRESIDENT WATSON

Appearances:

Mr T Dixon of Counsel on behalf of National Road Transport Operators Association.

Mr P Ryan on behalf of the Australian Road Transport Industrial Organisation.

Hearing details:

2014.

Sydney (and videolink to Melbourne)

February 14.

 1   [2013] FWCFB 8691 at [34]

 2   PR548031

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