New South Wales Nurses and Midwives' Association

[2016] FWC 8115

[2016] FWC 8115

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
Sch. 1, Cl. 6(2) RO Act - Application for an extension by a TRA

New South Wales Nurses and Midwives' Association
(D2016/59)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 10 NOVEMBER 2016

Application for extension by a TRA.

Introduction

[1] On 20 September 2016 the New South Wales Nurses and Midwives’ Association (the Applicant) lodged an application to extend its status as a Transitionally Recognised Association (TRA) pursuant to Schedule 1 Clause 6 of the Fair Work Registered Organisations Act 2009 (the RO Act).

[2] The application was signed on behalf of the Applicant by its Secretary, Mr Brett Holmes.

[3] The Applicant seeks an extension to its status on the basis that it has “made substantial progress but not yet completed rationalising our internal affairs with those of our federal counterpart, the Australian Nurses and Midwives’ Association.” (ANMF).

[4] Attached to the application was a Statutory Declaration by Mr Holmes. Mr Holmes sets out steps taken by the Applicant in seeking to rationalise it internal affairs with the ANMF.

[5] I note that, in practice, the Applicant operates as, or in conjunction with, the New South Wales Branch of the ANMF. The Applicant and the ANMF wish to operate in both the Federal and New South Wales industrial systems. The Fair Work Commission should encourage this consistent with the intention of the provisions of the RO Act.

[6] Steps taken by the Applicant include:

● Joint membership of the Applicant and the ANMF;

● Joint coverage by enterprise agreements made under the Fair Work Act 2009 (the Act);

● The issuing of federal right of entry permits to 100 or so of the Applicant’s employees;

● As of 1 October 2016, these 100 or so employees were transferred to the employment of the ANMF.

[7] Some employees of the applicant are members of a New South Wales Government defined benefit superannuation fund. The approval of the New South Wales Cabinet required allowing them to be employees of the ANMF and retain their superannuation entitlements. This is expected to take some time and is one of the main reasons for the extension application.

[8] In any event, it is intended that the New South Wales Nurses and Midwives’ Association will continue as a state registered organisation pursuant to the New South Wales Industrial Relations Act 1996.

[9] Considerable work has been undertaken with respect to taxation, property, insurance and financial reporting but this is not completed and will not be completed by 1 January 2017.

[10] Relevant resolutions of the governing bodies of the Applicant and the ANMF New South Wales Branch are attached to Mr Holmes’ Statutory Declaration.

Relevant Legislation

[11] The TRA regime was devised to encourage rationalisation of Australia’s mish-mash of federal and state registered unions. It was also necessary to ensure that when coverage of the federal industrial system was substantially expanded following the Workchoices legislation and the Fair Work Act 2009, particular unions were not disadvantaged.

[12] The process for applying for TRA status is dealt with in Schedule 1 Clause 2(1) of the RO Act 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.”

[13] Section 9A of the RO Act defines a “federal counterpart” organisation:

“9A Meaning of federal counterpart

(1) For the purposes of this Act, a federal counterpart for a particular association of employers or employees registered under a State or Territory industrial law is an organisation prescribed by the regulations to be a federal counterpart of that association.

(2) For the purposes of this Act, if subsection (1) does not apply in relation to a particular association of employers or employees registered under a State or Territory industrial law, a federal counterpart for the association is:

(a) an organisation that has a branch (including a division of such a branch or a constituent part of such a branch) in that State or Territory that has or purports to have:

(i) substantially the same eligibility rules as the association; and
(ii) a history of integrated operation with the association; or

(b) if paragraph (a) does not apply—an organisation of which the association has purported to function as a branch (including a division of a branch or a constituent part of a branch).”

[14] Regulation 8A of the Fair Work (Registered Organisations) Regulations 2009 (the RO Regulations) was made pursuant to s.9A, it provides:

“8A Prescribing federal counterpart

(1) For subsection 9A (1) of the Act, an organisation mentioned in column 3 of an item in Schedule 1A is prescribed as the federal counterpart of an association of employers or employees registered under a State or Territory industrial law mentioned in column 2 of the item.

(2) To avoid doubt, the validity or operation of an item in Schedule 1A is not affected merely because:

(a) the name of an organisation or association changes for a reason that is not associated with a change in eligibility rules or coverage; or

(b) an error or misdescription is made in the name of an organisation or association.”

[15] The list of counterpart organisations is contained in Schedule 1A of the RO Regulations. That list was finalised by the ACTU in a difficult process during 2010/2011, and endorsed by the ACTU Executive. The Applicant and its federal counterpart is Item 121. Name changes to both have occurred as envisaged by Regulation 8A.

[16] Clause 6(1)(c)(i) of Schedule 1 of the RO Act provides that the transitional recognition of a TRA will end on the fifth anniversary of the date declared by the Minister pursuant to s.158A(2).

[17] Clause 6 of Schedule 1 provides:

“6 End of transitional recognition

(1) The recognition under this Schedule of a transitionally recognised association that has been granted transitional recognition in relation to an application under subclause 2(1) ends:

(a) when it is cancelled under clause 5; or

(b) when the association becomes an organisation; or

(c) in any other case—at the end of:

(i) unless subparagraph (ii) or (iii) applies—the fifth anniversary of the earliest day on which an organisation can make an application in accordance with subsection 158A(2); or
(ii) if the FWC grants the association an extension under subclause (2) of this clause and subparagraph (iii) does not apply—the sixth anniversary of that day; or
(iii) if the FWC grants the association a further extension under subclause (3) of this clause—the seventh anniversary of that day.

(1A) The recognition under this Schedule of a transitionally recognised association that has been granted transitional recognition in relation to an application under subclause 2(1A) ends:

(a) when it is cancelled under clause 5; or

(b) when the association becomes an organisation; or

(c) in any other case—at the end of the latest of the following days:

(i) the day (the default day) that is the later of the fifth anniversary of the day the Fair Work Amendment (Transfer of Business) Act 2012 commenced and a day prescribed by the regulations;
(ii) if the FWC grants the association an extension under subclause (2)—the anniversary of the default day;
(iii) if the FWC grants the association a further extension under subclause (3)—the second anniversary of the default day.

(2) The FWC may, on application by a transitionally recognised association, grant the association an extension for the purposes of subparagraph (1)(c)(ii) or (1A)(c)(ii) if the FWC is satisfied that the association has made progress towards:

(a) becoming an organisation; or
(b) rationalising its internal affairs with those of its federal counterpart.

(3) The FWC may, on application by a transitionally recognised association, grant the association a further extension for the purposes of subparagraph (1)(c)(iii) or (1A)(c)(iii) if the FWC is satisfied that:

(a) the association has made further progress towards:

(i) becoming an organisation; or
(ii) rationalising its internal affairs with those of its federal counterpart; and

(b) there are extenuating circumstances justifying the further extension.”

[18] On 13 December 2010, the then Minister, Chris Evans designated 1 January 2012 as the relevant date. Therefore in the absence of an extension being granted, the transitional recognition of the Applicant will cease on 1 January 2017.

Commission Proceedings

[19] The matter was heard on 21 October 2016 in Sydney.

[20] The Applicant was represented by Ms E. Robinson together with Ms B. King.

‘

Consideration

[21] It can be seen that an extension of one year, to 1 January 2018, can be granted by the Commission if it is satisfied that the Applicant has made progress “towards becoming an organisation or rationalising its internal officers with those of its federal counterpart”. Obviously, only the second limb is relevant to this application. A further extension of one year may be granted, upon further application, if “further progress” is made and extenuating circumstances exist.

[22] The Applicant, in a further written submission and at the hearing, provided further detail on the progress towards rationalisation of its internal affairs with the ANMF, including:

● The lodgement of right of entry permits for employees transferred to the ANMF;
● Parallel meetings of the two sets of governing bodies.

[23] It seems to me that the matters which are likely to be relevant in considering whether progress has been made in rationalising the operation of the parallel organisations are:

● Ownership of real property
● Ownership of other assets
● Membership
● Membership income
● Elections
● Employment of staff
● Meetings of governing bodies
● Right of entry permits

[24] It is clear that progress has been made in rationalising the following:

● Dual membership
● Parallel meetings of governing bodies
● Transfer of a large number of staff to the ANMF
● Applications for right of entry permits

[25] However, elections are still separate and real property and other assets will remain in the name of the state registered union. Membership income goes to the state registered union and appropriate transfers are then made to the ANMF, at branch and national level. An agreement pursuant to ss.151 and 152 of the RO Act is intended but has not yet been finalised.

Conclusion

[26] In all the circumstances, I am satisfied that the Applicant has made progress towards rationalising its internal affairs with those of its federal counterpart, ANMF. Accordingly, it is appropriate to grant an extension of the Applicant’s TRA status.

Order

Pursuant to Schedule 1 Clause 6(2) of the Fair Work (Registered Organisations) Act 2009, an extension of the New South Wales Nurses and Midwives’ Association’s Transitionally Recognised Association status is granted. The New South Wales Nurses and Midwives’ Association is now transitionally recognised until 1 January 2018.

DEPUTY PRESIDENT

Appearances:

E. Robinson with B. King for the Applicant.

Hearing details:

2016

Sydney:

October 21.

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