National Road Transport Operators Association (NatRoad)
[2014] FWC 512
•22 JANUARY 2014
[2014] FWC 512
The attached document replaces the document previously issued with the above code on 22 January 2014.
Australian Road Transport Industrial Association has been to corrected and replaced with Australian Road Transport Industrial Organisation in Para [2] and in the Appearances.
Catherine Quayle
Associate to Vice President Watson
Dated 22 January 2014.
[2014] FWC 512 |
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, 22 JANUARY 2014 |
Existing corporate entity seeking to alter the basis of its incorporation to that of an organisation of employers registered under the RO Act - exemption from stating its actual name in the application as similar proposed name stated instead - exemption from the requirement to file existing corporate constitution as proposed compliant rules provided instead - s.25 Fair Work (Registered Organisations) Act 2009 - Regulations 21 and 179 of the Fair Work (Registered Organisations) Regulations 2009.
Introduction
[1] This decision relates to an application by the Natroad Limited (NatRoad), an applicant for registration under the Fair Work (Registered Organisations) Act 2009 (the RO Act), for exemption from the provisions of Regulation 21 of the Fair Work (Registered Organisations) Regulations 2009 (the RO Regs). NatRoad is an existing corporate entity and seeks to alter the basis of its incorporation to that of an organisation of employers registered under the RO Act. Unlike most applicants for registration it is not an unincorporated association.
[2] The application arises from an earlier decision of mine 1 dismissing technical objections raised by the objector the Australian Road Transport Industrial Organisation (ARTIO), and a successful appeal against that decision2. The Full Bench held that NatRoad could not proceed with its application because it did not comply with, and had not obtained exemption from, the requirements of Regulation 21 of the RO Regs by not identifying NatRoad’s actual name and not including its actual rules – those of the existing incorporated entity.
[3] Following the Full Bench decision NatRoad made application for exemption from compliance with Regulation 21 in the two respects found to be deficient in the Full Bench Decision. Regulation 21 provides:
“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.”
[4] The application for exemption is made under Regulation 179 of the RO Regs which provides as follows:
“179 Proceedings before FWC
(1) In any proceedings before the FWC, the FWC may exempt a person from compliance with a procedural requirement under the Act or these Regulations if the FWC is satisfied there are special circumstances.
(2) An exemption under subregulation (1) may be granted:
(a) absolutely; or
(b) subject to conditions.
(3) Failure to comply with a procedural requirement for proceedings before the FWC does not render the proceedings void but the proceedings may be:
(a) set aside, either wholly or in part, as irregular; or
(b) amended; or
(c) otherwise dealt with as and how the FWC thinks fit.”
[5] Regulation 179 confers a discretion on the Commission which can only be exercised if it is satisfied that there are special circumstances. In considering this application I must first determine whether there are special circumstances and secondly whether the exemption should be granted. In my view the requirement for special circumstances means that circumstances must be demonstrated, to the Commission’s satisfaction, to be out of the ordinary course.
[6] As to the exercise of the discretion, the Full Bench in the appeal in this matter agreed with the following view expressed by Williams SDP in Re Society of Australian Surgeons 3 (noting that regulation 33 of the Workplace Relations Regulations which he discusses is in substance the same as the current reg 21):
“[93] The provisions of Regulation 33(1) are mandatory. There is a considerable body of authority that non-compliance with like provisions renders an application invalid. However, these decisions relate to the legislation as it was when such applications were dealt with at first instance by Industrial Registrars who did not have the powers conferred by the Act upon the Commission. I do not resile from the view I expressed in Re Victorian Principals Federation that -
‘where, by reason of non-compliance with Regulation 33 an application for registration is so defective that it would not constitute an “application”, the designated Presidential Member has the power under s.111(1) to allow an amendment or a correction which would bring the application into compliance with the requirements of that Regulation.
There is also much to commend the view that “in registration cases every effort should be made to assist applicants to overcome purely technical objections”.’
[94] Accepting as I do that the powers conferred by paragraphs (p) and (r) of s.111(1) are available, it must also be accepted that their exercise is discretionary, to be exercised in the circumstances of a particular case. It may be that, in registration cases, they should be exercised only for the purpose of allowing “purely technical objections” to be remedied. Be that as it may, it is possible that any defects that may exist in the registration application might be remedied so as to bring it into compliance with the requirements of Regulation 33. Factors which might be taken into account for the purposes of determining whether or not the powers should be exercised would, in my view, include the nature and extent of the non-compliance with Regulation 33, the level of unfairness to the applicant association in not exercising the powers and the degree of prejudice to objectors if the powers were to be exercised.”
[7] I will consider each of the applications for exemption in turn by applying the above approach to the two questions that must be answered.
Existing name
[8] It will be seen from the terms of Regulation 21 that there is no express requirement to state the name of the existing body, but nevertheless, for the purposes of applying the other criteria it is necessary, as the Full Bench found, to identify the existing name, not a proposed name to apply in the future. The application for registration was made by the President and Vice President of NatRoad for the registration of an association to be called ‘The National Road Transport Operators Association (known as NatRoad)’. The existing corporate entity is called ‘Natroad Limited’ and its letterhead incorporates the term “National Road Transport Operators Association”. Apart from the proposed new set of rules, the application provided details of the existing corporate entity, as the details of the association proposed to be registered. The Resolution in favour of registration was passed unanimously at the 2012 Annual General Meeting of NatRoad expressed in terms of NatRoad making an application to be registered.
[9] The objector ARTIO expressed its strongest objection to the exemption with respect to varied rules and forcefully submitted that the better course was for the application for registration to be made afresh. It did not indicate that it was disadvantaged by the granting of an exemption with respect to the name of the applicant entity or that it was under any misunderstanding as to who the applicant was.
[10] A full review of the documentation lodged with the application makes it sufficiently clear in my view that the applicant entity was Natroads Limited albeit that it proposed to be registered with a different, but not dissimilar name. A closer consideration of the technical requirements for registration may have been preferable, but I consider that the circumstances involved are special and unusual circumstances. As the difference is minor, the consequences of not granting an exemption would be serious and there is no apparent prejudice to the Objectors I am prepared to grant an exemption from compliance with regulation 21(1)(a) with respect to the name of the applicant.
Proposed rules
[11] NatRoad seeks an exemption from the requirement to file its existing corporate constitution as it has filed, in lieu thereof, the rules it proposes to be its registered rules and has made an application under s.25 of the RO Act for leave to amend its rules to the proposed rules to enable it to comply with the RO Act and remove a ground of objection. NatRoad submits that as the requirements for incorporation under the Corporations law are different to those for registration under the RO Act, amendments to its rules were always going to be necessary and it has openly stated that intention. It therefore took steps to formulate a set of rules that would comply with the requirements of the RO Act and sought and obtained comments from the Registered Organisations branch of the Commission before lodging the application. It always proposed to amend its rules to the proposed rules prior to registration. It has now formally made application for leave to do so.
[12] I accept that a body that is formed for the purposes of seeking registration has a clearer path than an existing corporate entity to establishing itself with a name and rules for the purposes of registration and making the application on the basis of those rules. An existing corporate entity has a more complicated path of applying for registration and taking steps to continue to comply with its corporate obligations while modifying its rules to comply with the statutory regime for Registered Organisations. ARTIO submits that it is confused as to the actual rules of NatRoads and strongly submits that the application should be dismissed and a new compliant application be made. It submits that as things stand it is at a disadvantage not knowing the details of the association and its rules that it is required to deal with in support of its objection.
[13] Given the history of this matter, the complications associated with a corporate entity seeking to be registered and the stated objectives of NatRoads as to its intentions to amend its rules, I am of the view that special circumstances exist. I am further satisfied that provided the rules are formally amended in a prompt manner, and appropriate opportunities are provided for the Objectors to meet the case as may be amended by such a process, there is little prejudice to the Objectors. The consequences of failing to grant an exemption would be that the application for registration would fail and potentially a new application would need to be made. On balance I exercise my discretion in favour of granting an exemption. However I will require prompt attention to the application made under s.25 of the RO Act so that the application will either proceed on a clear unequivocal basis known to the objectors, or if the application is not successful, the application will not proceed.
Conclusions
[14] For the above reasons I grant the exemptions sought by NatRoads from compliance with regulation 21. The matter will be relisted shortly for the purposes of hearing the application made under s.25 of the RO Act.
VICE PRESIDENT WATSON
Appearances:
Mr T Dixon of Counsel on behalf of NatRoads.
Mr P Ryan on behalf of the Australian Road Transport Industrial Organisation.
Hearing details:
2013.
Sydney (and videolink to Melbourne)
December, 17.
1 [2013] FWC 5086.
2 [2013] FWCFB 8691.
3 PR934448.
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