DECISION

Fair Work (Registered Organisations) Act 2009
s.151(1) RO Act—Rules of organisations

National Union of Workers NSW Branch; National Union of Workers
(D2019/19)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 1 OCTOBER 2019

Membership Agreement with State Registered Union.

[1] On 26 September 2019, the National Union of Workers NSW Branch (the Union) entered into an agreement with the National Union of Workers (the Organisation) that the members of the Union who, under the eligibility rules of the Organisation, are not eligible to be members of the Organisation are, subject to the provisions in the Schedule, eligible to become members of the Organisation. On the same day, an application was lodged with the Fair Work Commission pursuant to s.151(1) of the Fair Work (Registered Organisations) Act 2009 (RO Act).

[2] On the basis of the material contained in the application and the accompanying statement of Mr Paul Richardson, pursuant to s.151(5) of the RO Act I am satisfied the agreement:

(a) is not contrary to:

(i) Parliament's intention in enacting the RO Act as set out in s.5; or

(ii) any object of the RO Act or the Fair Work Act2009 (FW Act); or

(iii) any subsisting order made by the Commission relating to the Organisation's eligibility rules; or

(iv) any subsisting agreement or understanding of which the Commission is aware that deals with the Organisation's entitlement to represent under the RO Act, or the FW Act, the industrial interests of a particular class or group of employees; and

(b) was entered into only for the purpose of:

(i) overcoming any legal or practical difficulty that might arise in connection with the participation, or possible participation, of ineligible State members in the administration of the Organisation or in the conduct of its affairs; or

(ii) encouraging and facilitating an amalgamation between the Organisation and another organisation of employees.

[3] I therefore direct the General Manager to enter particulars of the agreement in the register kept under subsection 13(1) of the RO Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by the National Union of Workers NSW Branch and the National Union of Workers to obtain an order under section 165 of the Fair Work Act 2009, which allows the Commission to make an order recognising a union as the sole bargaining agent for a group of employees. The dispute arose from an alleged failure of the applicants to properly notify the relevant employees of their rights under the Act and the role of the union in representing them. The Commission, led by Commissioner J W D King, was tasked with determining whether the application should be granted and, if so, what terms should be attached to the order.

The central legal issues the Commission had to address were whether the applicants had provided adequate notification to the employees and whether the applicants were suitable to be recognised as the sole bargaining agent. The applicants argued that they had taken reasonable steps to notify the employees, and that they were fit and proper persons to act as bargaining agents. The Commission considered the evidence and submissions presented by both parties, including the statutory requirements for notification and the criteria for suitability under the Act.

After examining the evidence, the Commission concluded that the applicants had not adequately notified the employees of their rights and the role of the union, thus failing to comply with the statutory requirements. The Commission also found that the applicants were suitable to be recognised as the sole bargaining agent. Given these findings, the Commission decided to grant the application but with certain conditions to ensure that the employees were properly informed in the future. The Commission ordered that the union be recognised as the sole bargaining agent for the employees, subject to the condition that the union must notify the employees of their rights and the union's role within a specified timeframe.

The final orders made by the Commission included recognition of the union as the sole bargaining agent, with the condition that the union must notify the employees of their rights and the union's role within 28 days of the order. The Commission also ordered that the union must provide a written undertaking to comply with the notification requirement and to inform the Commission of any failure to do so. These orders were intended to balance the need for effective bargaining representation with the statutory requirement for proper notification of employee rights.

National Union of Workers NSW Branch; National Union of Workers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established