National Union of Workers, New South Wales Branch

[2013] FWC 540

[2013] FWC 540

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
Sch. 1, Cl. 5(5) RO Act - Application to cancel the recognition of a transitionally recognised association

National Union of Workers, New South Wales Branch
(D2012/223)

VICE PRESIDENT WATSON SYDNEY, 24 JANUARY 2013

Application to cancel the recognition of a transitionally recognised association - Sch. 1, Cl. 5(5) Fair Work (Registered Organisations) Act 2009

Introduction

[1] This decision, edited from a decision on transcript on 18 January 2013, concerns an application by the National Union of Workers, New South Wales Branch (NUWN) to cancel the recognition of the NUWN as a transitionally recognised association. The application is made pursuant to item 5(5) of Schedule 1 of the Fair Work (Registered Organisations) Act 2009 (RO Act).

[2] At the hearing of this matter on 18 January 2013, the NUWN was represented by Mr S Mueller. Mr P Richardson sought leave to intervene on behalf of the NUW, being a federal organisation.

Background

[3] The NUWN was transitionally registered on 8 April 2009 under the Workplace Relations Act 1996 (Workplace Relations Act). It has a federal counterpart organisation being the National Union of Workers registered organisation under the RO Act.

[4] The grounds advanced by the NUWN for seeking the cancellation of the association, is that the both the NUWN and the NUW have agreed to rationalise their internal affairs, such that the federally registered body will effectively carry forward the functions previously performed by the separate organisations.

[5] A memorandum of agreement 1 was entered into by the NUWN and the NUW on the 13 September 2012. It was agreed that the NUWN would make an application prior to 11 October 2012 to cancel its transitional recognition. Subject to the NUWN filing this application, It was agreed that the NUW would in accordance with its rules, initiate a postal ballot of the NUW’s National Council seeking approval of the alteration of the NUW’s rules. Subject to the rule alterations being agreed, the NUW would make an application for approval of the rule alterations with the General Manager of the Fair Work Australia (R2012/146). It was agreed that NUWN’s application would seek the cancellation to have effect from the same date that is proposed for the alteration of the NUW’s rules, that being 6 February 2013.

The statutory provisions

[6] The relevant provisions of of Schedule 1of the RO Act are as follows:

“2 Application for transitional recognition

(1) A State-registered association may apply to the General Manager for transitional recognition under this Schedule if:

(b) immediately before the commencement of this Schedule, it had at least one member who was:

(i) an employee whose employment was subject to a State award, a State employment agreement or a State or Territory industrial law; or

(ii) an employer in relation to such an employee; and

(c) immediately before the commencement of this Schedule, it was entitled to represent the industrial interests of the member in relation to work that was subject to the State award, the State employment agreement or the State or Territory industrial law; and

(d) on the reform commencement, the employee will become bound by, or the employment of the employee will become subject to, a preserved State agreement or a notional agreement preserving State awards if he or she continues in that employment; and

(e) it is not also an organisation, or a branch of an organisation.

(2) The application must be accompanied by:

(a) evidence to establish the fact that the association satisfies subclause (1); and

(b) a copy of the current rules of the association; and

(c) a statement setting out:

(i) the address of the association; and

(ii) each office in the association; and

(iii) the name and address of each person holding office in the association.

(3) If the General Manager issatisfied that the association satisfies subclause (1), the General Manager must, by written instrument, grant the application and record the fact that he or she is so satisfied.

(4) An instrument under subclause (3) is not a legislative instrument.

(5) The General Manager must give a copy of the instrument to the association.

(6) A State-registered association is taken to be recognised under this Schedule when the General Manager grants the application.

...

5 Cancellation of transitional recognition

Cancellation by FWA

(5) FWA may cancel the recognition under this Schedule of a transitionally recognised association:

(a) on application by the association made under the regulations; or

(b) on application by a person interested or by the Minister, if FWA has satisfied itself, as prescribed,that the association:

(i) was recognised by mistake; or

(ii) is no longer a State-registered association.”

[7] Item 5(5) of schedule 1 of the RO Act which is relied upon in the application, has not been considered by the Commission or its predecessor previously. This appears to be the first application of its type. The question arises as to the nature of the test and approach to applying that provision. I have considered the scheme of schedule 1 in determining the appropriate task the Commission needs to apply. The notion of transitionally recognised associations was a concept developed to facilitate the participation of state registered associations within the federal system consequent upon the expanded jurisdiction of the Workplace Relations Act from 2006.

[8] The means by which an association could be transitionally recognised is dealt with in item 2 of schedule 1. It’s a relatively easy test to satisfy, relating to the existing status and functions under state laws and state instruments. The schedule provides various means for the cancellation of transitional recognition of an association being either by the Federal Court, the Fair Work Commission, the General Manager, or by the exfluxion of time.

[9] Item 5(5) provides a different test depending on who makes the application. There would appear to be a more stringent basis for granting the application if the application had been made by a person interested or the Minister, rather than an application by the association itself. This appears to be a logical position given that making the application for transitional recognition in the first place is a choice of the association. It is logical that absent some strong reasons to the contrary, the association should be able to apply to have its recognition cancelled.

[10] Therefore the primary consideration that I must give consideration to is that the association genuinely seeks the cancellation. This position is clear from the grounds of the application and the circumstances explained in the memorandum of agreement, those circumstances being that the application is made for good reason and that there are detailed arrangements in place to ensure that the role of the NUWN is carried forward by way of the rationalisation of affairs with the NUW.

[11] I note the support for the application by the NUW and I note the consequent rule changes that have accompanied the application. 2 I am satisfied that appropriate grounds for approving the application for cancellation have been made out and I propose to issue an order giving effect to that conclusion. As requested by the NUWN, I will adopt the operative date of 6 February 2013.

I am also conscious that a change of this nature may give rise to unintended consequences that might not have been anticipated through the process. If any such consequences arise, they are matters which I believe should be able to be dealt with at a subsequent stage and an appropriate solution be found to resolve them. The parties or any interested party may make an appropriate application should that occur in the future.

VICE PRESIDENT WATSON

Appearances:

S Meuller for National Union of Workers, New South Wales Branch

P Richardson for the National Union of Workers

Hearing details:

2013.

Melbourne.

January 18.

 1   Exhibit R1.

 2   Exhibit R2.

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