National Road Transport Operators Association (NatRoad)

[2013] FWC 5086

[2013] FWC 5086

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.18(a) RO Act - Application for registration by an association of employers

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

VICE PRESIDENT WATSON SYDNEY, 26 JULY 2013

Application for registration by an association of employers - technical objections - Corporations Act 2001 - Fair Work (Registered Organisations) Act 2009 - ss. 18, 19.

Introduction

[1] This decision concerns an application for registration as an employer association by the National Road Transport Operators Association (NatRoad) made pursuant to s.18(a) of the Fair Work (Registered Organisations) Act 2009 (the RO Act). The application was made on 17 January 2013 and was published in Government Gazette GN 06 on 13 February 2013 in accordance with regulation 22 of the Fair Work (Registered Organisations) Regulations 2009 (the RO Regulations).

[2] Regulation 25 of the RO Regulations allows parties to object to an application made under s.18(a) within 35 days of gazettal. Objections were received from the Transport Workers’ Union of Australia (TWU) and the Australian Road Transport Industrial Organization (ARTIO).

[3] NatRoad and the objectors attempted to resolve the objections, but were unable to reach agreement. Directions were issued, and the matter was listed for determination of objections of a technical nature on 12 July 2013. This decision concerns the technical objections.

[4] At the hearing, Mr T Dixon of counsel appeared for NatRoad. Mr P Ryan appeared for ARTIO. The TWU did not appear in the proceedings.

The legislation

[5] Section 18(a) of the RO Act provides that federally registrable association of employers may apply for registration. Section 18A sets out what constitutes a federally registrable association of employers:

“Federally registrable employer associations

(1)  An association of employers is federally registrable if:

(a)  it is a constitutional corporation; or

(b)  some or all of its members are federal system employers.

(3)  An association of employers is not federally registrable if it has a member who is not one of the following:

(a)  an employer;

(b)  a person who was an employer when admitted to membership, but who has not resigned or whose membership has not been terminated;

(c)  a person (other than an employee) who carries on business;

(d)  an officer of the association.

(4)  An association of employers is not federally registrable if:

(a)  it is only a body corporate because it is or has been registered under this Act (whether before or after the commencement of this subsection); and

(b)  it is not the case that some or all of the association's members are federal system employers.”

[6] The criteria for registration are set out in s.19 of the RO Act:

“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.”

The technical objections

[7] The ARTIO objects to NatRoad’s application on the ground that NatRoad is not an association of employers of the kind that is federally registrable. The ARTIO submits that it is incompatible with the registration scheme under the RO Act for NatRoad to seek registration with one set of rules when it is also incorporated as an association under the Corporations Act 2001 with a different set of rules.

[8] ARTIO submits it is unclear what the name of the applicant association is from the documents provided with the application. The ARTIO asserts that the true name of the applicant association is NatRoad Limited, a company limited by guarantee incorporated under the Corporations Act 2001.

[9] ARTIO also raises objections to the rules documents lodged by NatRoad. It submits that the rules provided with the application are not the true rules of NatRoad. The ARTIO says that the true rules of NatRoad are the Constitution of NatRoad Limited, as lodged with the Australian Securities & Investments Commission (ASIC), and are different from those lodged with the Fair Work Commission.

[10] ARTIO takes further objection to the eligibility rules of NatRoad. The ARTIO cites the decision of Senior Deputy President Lacy in Australian Petroleum Agents and Distributors Association 1, where his Honour said of eligibility rules:

“As eligibility rules define the scope of the organisation’s coverage it is important that the class is identified with some degree of specificity. If the class is incapable of identification with some degree of specificity then the application must be refused.”

[11] ARTIO says that the eligibility rules set out in rules 3, 5.2(a) and (b) of the rules filed by NatRoad in the application are vague and ambiguous, and therefore do not identify the class of entities eligible for membership with sufficient specificity. Rule 3 states:

“3. Eligibility

Membership of NatRoad may be comprised of an unlimited number of incorporated operators or contractors working in or in connection with the Australian road transport industry including without limitation, fleet operators, general freight, road trains, livestock, grain, tippers, express carriers, tankers and refrigerated operators involved in the business of both intrastate and interstate Road Freight Transport”

[12] Rules 5.2(a) and (b) state:

“5. Membership

...

5.2 Membership of NatRoad may be comprised of an unlimited number of operators or contractors, as set out in Rule 3 so long as:

(a) a contractor shall be body corporate who or which is a participant in the transport industry and who, or which either has legal control over any number of freight transport vehicles or who organises the movement of freight without legal control of transport vehicles or trailers, but does not include an employee; and

(b) an operator shall be body corporate who or which is a participant in the transport industry and who or which has legal control over any number of transport vehicles, but does not include an employee.”

[13] NatRoad contends that simultaneous incorporation under two Acts is clearly contemplated under the RO Act and has been available since its enactment in 2005. It contends that ARTIO has not referred to s.18A and that this provision provides an answer to much of the technical objections raised by ARTIO. NatRoad submits that once this notion is accepted it is then a question of what process is appropriate to have rules adopted that comply with the requirements of the RO Act. The course it has followed is to propose a set of rules that comply with those requirements, amend them as necessary to enable it to comply with the RO Act and upon registration being approved, replace its existing rules with the proposed RO Act-compliant rules. The CEO of NatRoad, Chris Melham, gave evidence that this was NatRoad’s intention.

[14] NatRoad contends that it is clear that the name of the Applicant is NatRoad Limited and no issue arises from any confusion as to its name. It submits that there is no ambiguity in its eligibility rule and the other technical objections lack merit.

Conclusions

[15] I am not satisfied that the technical objections have substance.

[16] The name of the proposed organisation is NatRoad Limited. That is clear from the documentation and submissions in the matter.

[17] The eligibility rule covers operators and contractors working in or in connection with the Australian road transport industry. The words which follow this general description provide further clarification of what is intended to be included within that description. Some of these terms, such as “Road Freight Transport” are further defined in clause 1 of the rules. I do not consider that these terms are inherently ambiguous or are not sufficiently specific. I am satisfied that they comply with the requirements of the RO Act.

[18] The process adopted by NatRoad regarding its rules is to authorise the application for registration under its existing corporate rules, to propose registered rules in its application in the same manner as a non-corporate entity would propose rules and upon registration replace its corporate rules with the registered rules. ARTIO has failed to establish any non-compliance, breach or defect in this process. I do not consider that this process offends any provision of the RO Act.

[19] For these reasons I reject the technical objections advanced by ARTIO. The matter will be listed for further hearings in relation to the merit objections.

VICE PRESIDENT WATSON

Appearances:

Mr T Dixon, of counsel, for the National Road Transport Operators Association

Mr P Ryan for the Australian Road Transport Industrial Organization

Hearing details:

2013.

Sydney.

July

12

 1   [2008] AIRC 11

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