Police Association Salaried Officers Union

[2012] FWA 10266

[2012] FWA 10266

FAIR WORK AUSTRALIA

DECISION

Fair Work (Registered Organisations) Act 2009
s.18(c) RO Act - Application for registration by an enterprise union

Police Association Salaried Officers Union
(D2012/210)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 18 DECEMBER 2012

Application for registration by an enterprise union.

[1] The Police Association Salaried Officers Union (the applicant) lodged an application with Fair Work Australia on 12 June 2012 for registration of the Police Association Salaried Officers Union as an organisation under Part 2, Section 18(c) of the Fair Work (Registered Organisations) Act2009 (the RO Act).

[2] The criteria for registration of associations (other than enterprise associations) are set out in Section 19(1) of the RO Act. This section states as follows:

“19 Criteria for registration of associations other than enterprise associations

(1) FWA 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) FWA 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.

[3] Further requirements for registration are set out in Regulation 21 of the Fair Work (Registered Organisations) Regulations 2009 (the RO Regulations). They are as follows:

“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 applicationand in any document lodged with the application; and

(c) be lodged with FWA; 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 FWA an additional statement supporting the application.”

[4] The application was gazetted in the Commonwealth of Australia Gazette No. GN 25 on Wednesday, 27 June 2012. A copy of the application was also published on Fair Work Australia’s website.

Objection

[5] Regulation 23 of the RO Regulations allows for objections in relation to registration of an association to be filed with Fair Work Australia within 35 days of receipt of the application being published in the Gazette.

[6] On 1 August 2012 an objection to the proposed registration of the Association was filed in Fair Work Australia by the Australian Municipal, Administrative, Clerical and Services Union (ASU). This objection was lodged in accordance with Regulation 23 of the RO Regulations.

[7] The matter was listed for hearing before me (with a video link to Melbourne) on 10 September 2012. At this hearing the matter did not settle but the parties undertook to conduct further discussions and correspondence in an effort to resolve the ASU’s objection.

[8] The matter was again listed before me on 5 December 2012 (with a video link to Melbourne) for report back. At that hearing a number of documents were tendered, those being correspondence which had passed between the parties regarding an undertaking by the applicant (the Undertaking) that would settle the objection of the ASU.

[9] At this hearing, correspondence dated 28 September 2012 from National Secretary of the ASU, Mr David Smith, to the President of the applicant, Mr Paul Nannen, was tabled. This correspondence became Exhibit PASOU 1 and contained an undertaking which is set out as follows:

“Undertaking

PASOU acknowledges the ASU has coverage of clerical, administrative and welfare staff employed by registered organisations and is opposed in principle to the creation of federally registered enterprise unions without a legitimate history i.e. independent of the employer.

For the purposes of Section 18C of Fair Work (Registered Organisations) Act 2009 and conditional on the ASU withdrawing its objection PASOU undertakes to:

• Insert “New South Wales” into the title of the proposed registered organisation e.g. New South Wales Police Association Salaried Officers Union or PASOU(NSW);



• Remove the Police Federation of Australia as the federal counterpart of PASOU by notifying Fair Work Australia to remove PASOU from Schedule 1A of Fair Work (Registered Organisations) Regulations 2009 (Item 125);



• Not recruit or seek to cover employees, including those eligible to join the ASU, outside of the Police Association of New South Wales;



• Submit to Fair Work Australia that the Undertaking be expressly referred to in any decision approving registration.

[10] Further correspondence dated 8 November 2012 from the applicant to the ASU was tendered. This correspondence was from Ms Kym McIlveen, Vice President of the applicant to the National Secretary of the ASU, agreeing to the terms set out in the Undertaking. This reply correspondence became Exhibit PASOU 2.

[11] Having heard the parties and having considered the material filed in support of this application, I am satisfied that there has been compliance with the requirements of the RO Act and the RO Regulations. I am also satisfied that:

1. The application has been made under the rules of the organisation;

2. The proposed name of the organisation is not the same name as another organisation, nor is it so similar to the name of another organisation as to be likely to cause confusion (s.158(3)).

[12] I am satisfied that all the criteria and requirements have been met and I therefore grant the application. The new organisation will be named “Police Association Salaried Officers Union of New South Wales”.

Orders and Directions

1. I fix Tuesday, 15 January 2013 as the day of Registration.

SENIOR DEPUTY PRESIDENT

Appearances:

K. McIlveen with G. Doyle for the Police Association Salaried Officers Union.

J. Nucifora and M. Rizzo (by video link to Melbourne) for Australian Municipal, Administrative, Clerical and Services Union.

Hearing details:

2012

Sydney:

September 10;

December 5.

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