Queensland Nurses and Midwives' Union of Employees

[2017] FWC 6615

[2017] FWC 6615

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
Sch. 1, Cl. 6(3) RO Act - Application for an extension by a TRA

Queensland Nurses and Midwives' Union of Employees
(D2017/15)

VICE PRESIDENT HATCHER SYDNEY, 21 DECEMBER 2017

Application/Notification for an extension by a transitionally recognised association by Queensland Nurses and Midwives' Union of Employees.

[1] On 5 December 2017, the Queensland Nurses and Midwives’ Union of Employees (QNMU), a transitionally recognised association (TRA), lodged an application pursuant to clause 6(3) of Schedule 1 of the Fair Work (Registered Organisations) Act 2009 (RO Act) seeking a further extension of its transitional recognition. The application was signed on the QNMU’s behalf by Elizabeth Mohle, its Secretary. Clause 6(1)(c)(i) of Schedule 1 of the RO Act provides:

(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.

[2] The fifth anniversary for the purpose of cl 6(1)(c) is 1 January 2017.

[3] Subclauses 6(2) and 6(3) empower the Commission to grant the extensions referred to in cl 6(1)(c)(i) and (ii) as follows:

(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.

[4] On 30 November 2016 the Commission granted an application by the QNMU for an extension until 1 January 2018, pursuant to clause 6(2) of Schedule 1 of the RO Act. 1 It did so on the basis that it was satisfied, based on the materials submitted by the QNMU, that it had made progress towards rationalising its internal affairs with those of its federal counterpart, the Australian Nurses and Midwives Federation (ANMF).

[5] In order to grant the further extension now sought by the QNMU pursuant to cl 6(3), the Commission must be satisfied that the QNMU has made further progress towards becoming an organisation or rationalising its internal affairs with those of its federal counterpart and there are extenuating circumstances justifying the further extension.

[6] The QNMU cannot “become an organisation” (or make further progress towards becoming one) 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 QNMU is registered as an organisation of employees under the Industrial Relations Act 2016 (Qld). It also has a federal counterpart, the Australian Nurses and Midwives Federation (ANMF). 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 Fair Work (Registered Organisations) Regulations 2009 (the RO Regulations). Schedule 1A of the RO Regulations prescribes the ANMF as the federal counterpart of the QNMU (see reg. 8A and item 229 of Schedule 1A). Accordingly the QNMU’s application may only be granted on the basis that it satisfies the second condition in paragraph (b) of cl 6(3) - that is, it has made progress towards rationalising its internal affairs with those of its federal counterpart and that there are extenuating circumstances justifying the future extension under cl 6(3)(b).

Evidence and submissions

[7] In support of its application, the QNMU also relied on the statutory declaration of Ms Elizabeth Mohle, its Secretary, dated 15 December 2017. Regarding cl 6(3)(a)(ii), Ms Mohle stated in her declaration that since the extension she has “taken measures to continue to, and further rationalise the affairs of the QNMU” with the affairs of their federal counterpart. She identified that further steps had been taken in the following areas:

•  Joint employment of officials: Since the extension granted in November 2016, the position has been reached whereby 83 of the 102 officials of the QNMU are now jointly employed by the ANMF, including all officials requiring a federal right of entry permit. Administrative staff remain employed by the QNMU but perform work as may be required under the service agreement between the QNMU and the QNMU Branch of the ANMF.

•  Right of entry: All officials holding entry permits under the Fair Work Act now hold them in the name of the ANMF. The QNMU has been progressively returning entry permits held in its name as they expire, but it has been necessary to retain a small number of officials with entry permits in the name of the QNMU to protect the interests of members under existing enterprise agreements which cover only the QNMU.

•  Enterprise agreements: Since November 2016, all enterprise agreements approved under the federal system have been made in the name of the ANMF and the QNMU (as a transitionally registered association), but representation rights have been exercised in the name of the ANMF only.

•  Rules: The rules were recently amended to change to the name of the organisation from the “Queensland Nurses Union of Employees” to the “Queensland Nurses and Midwives Union’ of Employees”, which aligns it to the ANMF branch name. The rules of the ANMF were amended on 5 April 2017 to ensure that the name of the state registered body is consistent with the federal branch name and the structure and processes correlate. This allows elections to be conducted solely in relation to the federal name of the ANMF, with the elected officers then also deemed elected into corresponding offices in the QNMU pursuant to an exemption granted under s 580 of the Industrial Relations Act 2016 (Qld). Such an exemption has been sought and granted, so that from 23 December 2016 those persons who held office in the federal branch were deemed elected to and held the corresponding offices in the QNMU.

[8] Ms Mohle stated that the purpose of taking these measures was to rationalise the QNMU’s affairs, reduce administrative costs to joint members, reduce the replication of services to joint members, reduce the confusion between the two entities and enhance the efficiency and effectiveness of joint members.

[9] In relation to the requirement in cl 6(3)(b) for extenuating circumstances, Ms Mohle said that “despite its best endeavours to rationalise its affairs, the QNMU has not been able to completely do so in the timeframe initially set by the legislature nor during the period of the first extension of that timeframe”. She also stated that there were matters beyond the control of the QNMU that required the continued existence of the QNMU as a transitionally registered association in order to protect the interests of members. In particular, a number of enterprise agreements which applied to members and covered the QNMU but not the ANMF remained in effect, including agreements which would not pass their nominal expiry date until 31 December 2017 or after, agreements which remained in effect while replacement agreements awaited approval by the Fair Work Commission, and agreements still applying while their replacements were being negotiated.

Conclusion

[10] I am satisfied, on the basis of the statutory declaration of Ms Mohle, that the QNMU has made further progress towards rationalising its internal affairs with the ANMF with respect to joint employment of officials, right of entry permits, enterprise bargaining and its rule. I also accept that there are extenuating circumstances, in that a refusal of the extension might prejudice the interests of members under the remnant of federal enterprise agreements which apply to the QNMU (as a transitionally registered association) but not the ANMF.

[11] The jurisdictional preconditions for the grant of an extension under cl 6(3) are therefore satisfied. I consider that I should exercise my discretion under cl 6(3) to grant the further extension so that the ANMF and the QNMU may complete their rationalisation process. I therefore order as follows:

Pursuant to clause 6(3) of Schedule 1 of the Fair Work (Registered Organisations) Act 2009, the transitional recognition of the Queensland Nurses and Midwives' Union of Employees is further extended until 1 January 2019.

VICE PRESIDENT

 1   [2016] FWC 8534

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