Real Estate Employers' Federation

[2015] FWC 4273

[2015] FWC 4273

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act - Application for alteration of eligibility rules

Real Estate Employers' Federation
(D2015/52)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 25 JUNE 2015

Application for alteration of eligibility rules.

[1] This decision concerns an application made under s.158(1) of the Fair Work (Registered Organisation) Act 2009 (“the RO Act”) by the Real Estate Employers’ Federation (the REEF), for consent, to change its eligibility rules. The application was lodged on 19 March 2015, and the matter was heard on 22 June 2015.

[2] The current eligibility rule at Sub Rule 5 of the Federation’s rules reads as follows:

‘5 - ELIGIBILITY FOR MEMBERSHIP

The Federation shall consist of persons (which may include an individual, firm, partnership, trust, organisation, association, corporation, sole trader or statutory authority), who are employers in New South Wales and/or the Australian Capital Territory engaged in or in connection with Property, Stock and Business Agency industries. For the purposes of this Rule “employer” means real estate agent, stock and station agent, business agent, real estate dealer, property management agent, strata managing agent, builder, property developer, auctioneer, real estate valuer or a person who employs a salesperson to sell land.’

[3] The alteration as sought has the effect of deleting the words “and/or” in sub rule 5 and inserting after Australian Capital Territory in sub-rule 5 “Victoria or Tasmania”. By so altering the eligibility rule, the Federation will be entitled to enrol as members, employers in the real estate industry who operate a business in New South Wales, Australian Capital Territory, Victoria and Tasmania.

[4] The application before me was gazetted on 26 March 2015. No objections were received in relation to the application.

Applicable legislation

“158 Change of name or alteration of eligibility rules of organisation

(1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:

(a) in the case of a change in the name of the organisation – the FWC consents to the change under this section;

(b) in the case of an alteration of the eligibility rules of the organisation:

(i) FWC consents to the alteration under this section;

...

(2) The FWC may consent to a change or alteration in whole or part, but must not consent unless the FWC is satisfied that the change or alteration has been made under the rules of the organisation.
…

(4) The FWC must not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the FWC, another organisation:

(a) to which those persons could more conveniently belong; and

(b) that would more effectively represent those members.

...

(6) The FWC may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of persons.

(7) The FWC may also refuse to consent to an alteration of the eligibility rules of an organisation if it:

(a) is satisfied that the alteration would change the effect of any order made by the FWC under section 133 about the right of the organisation to represent under this Act and the Fair Work Actthe industrial interests of a particular class or group of employees; and

(b) considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.

(8) Subsections (6) and (7) do not limit the grounds on which the FWC may refuse to consent to an alteration of the eligibility rules of an organisation.

(9) Where the FWC consents, under subsection (1), to a change or alteration, the change or alteration takes effect on:

(a) where a date is specified in the consent - that date; or

(b) in any other case - the day of the consent.’

Compliance with the Act and Regulations

[5] I am satisfied that the application has been made in accordance with the Rules of the REEF, as required by s.158(2) of the RO Act.

[6] In the declarations by the President of the REEF that accompanied the application, the REEF declared that notice was provided to management committee members of the REEF one month prior to the Committee of Management meeting on 23 February 2015 of the intention to alter the Rules of the REEF.

[7] The resolution was carried unanimously by all persons who attended and voted at the Management Committee meeting.

[8] No issue arises in relation to ss.158(6) or (7), of the RO Act.

[9] There are no other grounds that would cause me to refuse consent to the alteration to its eligibility rules that is now sought by the Federation. In particular I am satisfied, in relation to persons who would be eligible for membership as a result of the proposed change in the eligibility rules that there is no other organisation to which those persons could more conveniently belong and that would more effectively represent those members.

Conclusion

[10] The new rules are appended to this decision as Attachment A.

[11] The alterations will come into operation from 25 June 2015.

SENIOR DEPUTY PRESIDENT

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