Queensland Independent Education Union of Employees

[2016] FWC 9243

[2016] FWC 9243

FAIR WORK COMMISSION

DECISION

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

Queensland Independent Education Union of Employees
(D2016/83)

VICE PRESIDENT HATCHER SYDNEY, 23 DECEMBER 2016

Application/Notification for an extension by a transitionally recognised association by Queensland Independent Education Union of Employees.

Introduction

[1] On 22 December 2016 the Queensland Independent Education Union of Employees (QIEU), a transitionally recognised association (TRA), lodged an application pursuant to clause 6(2) of Schedule 1 of the Fair Work (Registered Organisations) Act 2009 (RO Act) seeking an extension of its transitional recognition. The application was signed on the QIEU’s behalf by Mr Terence P Burke, its General Secretary. 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 earliest day on which an organisation can make an application in accordance with s.158A(2) of the RO Act unless an extension has been granted by the Commission. Section 158A(2) of the RO Act provides that an application cannot be made under that section before 1 January 2011 or such later day as the Minister declares in writing. On 13 December 2013 the then Minister declared 1 January 2012 as the earliest date under s.158A(2) of the RO Act upon which an application under s.158A(1) of the RO Act may be made (Fair Work (Registered Organisations) Declaration 2010). In an absence of an extension being granted, the transitional recognition of the QIEU will therefore cease on 1 January 2017.

[2] Clause 6(2) of Schedule 1 of the RO Act read in conjunction with cl.6(1)(c)(ii) provides that the Commission may, on application, grant a TRA an extension of its recognition until 1 January 2018 in prescribed circumstances. Clause 6(1)(c)(ii) provides that the recognition of a TRA will end on the sixth anniversary of the earliest date on which a s.158A(1) application may be made if an extension is granted under clause 6(2). Clause 6(2) provides:

(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 QIEU cannot satisfy the first condition in paragraph (a) of cl.6(2) because s.19(5) of the RO Act prohibits the Commission from registering an association registered under a State or Territory industrial law if the association has a federal counterpart. The QIEU is registered as an organisation of employees under the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations). It also has a federal counterpart. The term “federal counterpart” is defined in s.9A(1) of the RO Act to mean an organisation prescribed to be a federal counterpart of a particular association by the RO Regulations. Schedule 1A of the RO Regulations prescribes the Independent Education Union of Australia (IEUA) as the federal counterpart of the QIEU (see reg. 8A and item 228 of Schedule 1A).

[4] Accordingly the QIEU’s application may only be granted on the basis that it satisfies the second condition in paragraph (b) of cl.6(2) - that is, it has made progress towards rationalising its internal affairs with those of its federal counterpart.

Evidence

[5] In support of its application, the QIEU relied on a statutory declaration made by Mr Burke on 22 December 2016. In that declaration Mr Burke stated that the QIEU had taken steps to rationalise its internal affairs with the IEUA as follows:

• Membership: Up until 30 June 2015, each member of the QIEU was entitled to be, and became a member of the Queensland and Northern Territory Branch of the IEUA (Branch). Between 1 July 2015 and 31 December 2015 membership was transitioned from QIEU being the primary entity to the Branch being the primary entity. Subsequent to 1 January 2016, members applied for membership of (or renewed their membership of) the Branch. Such members are entitled to be, and are, members of the QIEU.



• Meetings: At each meeting of the Branch’s Executive and Committee of Management, and at each meeting of the QIEU Council and Executive, the collaborative relationship between the two unions is noted and the provision of facilities and support by one to the other on an agreed basis is endorsed.



• Employees: Prior to 1 July 2015, all employed organisers and administrative staff were employed by the QIEU. At 1 July 2015, all employees became employed by the Branch. Appropriate protections were put in place to recognise service for all purposes and all conditions of employment remained the same. Similarly, paid elected officials were paid by the QIEU prior to 1 July 2015 and from that point on were paid by the Branch.



• Right of entry permits: Prior to the introduction of the Fair Work Act 2009, elected officials, organisers and industrial staff held right of entry permits from the Queensland State jurisdiction. The possession of right of entry permits transitioned from the State jurisdiction, through the TRA status and now such permits are applied for under the auspices of the Branch under the Fair Work Act.



• Property: The QIEU owns real properly. Subsequent to 1 July 2015, new assets (other than real property) such as vehicles have been obtained by, and owned by the Branch.



• Finances: The financial relationship between the QIEU and the Branch is a matter of on-going consideration.



• Coverage: The Branch has about 16,700 members while the QIEU has about 16,000 members. The difference in membership numbers is primarily because of the coverage of the Branch in the Northern Territory. It is intended that an application to be made to better align the coverage of the Branch with that of the QIEU



• Enterprise Agreements: The Branch represents members in schools and colleges whose wages and conditions are governed by over 130 Enterprise Agreements. Further, the Branch represents members in community kindergartens whose wages and conditions are governed by over 300 Enterprise Agreements. The QIEU represents only members who are employed by three employers who are still subject to the State jurisdiction and the Queensland Local Government Industry Award 2004. Hence the Branch is the dominant representative of members.

Conclusion

[6] I am satisfied, on the basis of the materials submitted by the QIEU, that it has made progress towards rationalising its internal affairs with those of its federal counterpart, the IEUA. Accordingly, the jurisdictional precondition in cl.6(2)(b) of Schedule 1 of the RO Act is satisfied, and I consider it appropriate to exercise my discretion in favour of granting an extension of the QIEU’s transitional recognition until 1 January 2018.

[7] I therefore order as follows:

Pursuant to clause 6(2) of Schedule 1 of the Fair Work (Registered Organisations) Act 2009, the transitional recognition of the Queensland Independent Education Union of Employees is extended until 1 January 2018.

VICE PRESIDENT

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