Real Estate Employers’ Federation

[2020] FWC 4625

[2020] FWC 4625

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act—Rules of organisations

Real Estate Employers’ Federation
(D2020/11)

DEPUTY PRESIDENT COLMAN MELBOURNE, 1 SEPTEMBER 2020

Application for consent to alter the eligibility rules of an organisation

[1] The Real Estate Employers’ Federation (REEF) has made an application for the Commission’s consent, pursuant to s 158(1) of the Fair Work (Registered Organisations) Act 2009 (Act), to alter its eligibility rules. REEF is an organisation of employers engaged in or in connection with the property, stock and business agency industries in New South Wales, the Australian Capital Territory, Victoria, Tasmania, Queensland and Western Australia.

[2] The application seeks to alter Rule 5, which concerns eligibility for membership, in order to allow employers in South Australia and the Northern Territory to be eligible for membership of REEF.

[3] Notice of the application was published in the Commonwealth of Australia Gazette on 10 July 2020. The period for lodgement of objections under regulation 124 of the Fair Work (Registered Organisations) Regulations 2009 (Regulations) expired on 15 August 2020. There were no objections.

[4] Section 158 of the Act relevantly provides:

“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; or

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

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

(ii) the General Manager consents to the alteration under section 158A.

(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…

(5) However, subsection (4) does not apply if the FWC accepts an undertaking from the organisation seeking the alteration that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.

(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 Act the 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.”

[5] An applicant is also required to comply with Regulation 121 of the Fair Work (Registered Organisations) Regulations 2009 (the Regulations), which provides:

“121 Application for consent to change of name or alteration of eligibility rules of an organisation (s 158 (1))

(1) An organisation may apply to the FWC for the consent of the FWC under subsection 158(1) of the Act to:

(a) change the name of the organisation; or

(b) alter the eligibility rules of the organisation.

(2) An application under subregulation (1) must:

(a) be in the form set out in the Procedural Rules or in a form otherwise approved by the President; and

(b) set out:

(i) if the application is for consent to change the name of the organisation—the proposed name and the reason for the proposal; or 

(ii) if the application is for consent to alter the eligibility rules of the organisation—the proposed alteration, the reason for the proposal and the effect of the proposal, in sufficient particularity to allow the proposal to be properly considered; and

(c) contain a declaration:

(i) that the change or alteration was made in accordance with the rules of the organisation; and 

(ii) stating the action taken under those rules to make the change or alteration; and 

(iii) verifying the facts stated in the application; and

(d) be lodged with the FWC; and

(e) if the application is for consent to alter the eligibility rules of the organisation—be lodged with a copy of the rules that are proposed to be altered.

(3) If an application under subregulation (1) is not in accordance with this regulation, the General Manager must tell the applicant how the application or statement does not comply with the regulation.

(4) An organisation that has a web site must publish on its web site a notice that it has lodged the application mentioned in subregulation (1).’

[6] Based on the materials submitted with the application, including the declaration of Mr Christian Payne, President of REEF, I am satisfied that the association has complied with the requirements of the Act and the Regulations.

[7] In relation to the requirement in s 158(2) of the Act, I am satisfied that the alteration of the eligibility rules has been made under the rules of the organisation, on the basis that the organisation convened a meeting of the Committee of Management on 1 July 2020, and that a quorate vote of the Committee passed the alteration to the rules of the organisation.

[8] In relation to s 158(4), I note that there is a federally registered organisation eligible to enrol employers in South Australia and the Northern Territory in the industries of selling or buying land, property or business, known as the Real Estate Employers’ Federation of South Australia and the Northern Territory (REEFSANT). No undertaking of the kind contemplated by s 158(5) has been provided by REEF. However, although the two organisations may both have coverage of relevant persons if the rule change application is granted, there is nothing before me that suggests that those persons could more conveniently belong to REEFSANT or would be more effectively represented by that organisation. There would need to be some cogent evidentiary or other basis upon which to draw such a conclusion.

[9] In this case, REEFSANT advised my chambers that it has been provided with a copy of the application and that it has no objection to it. Like the Full Bench in AMWU v Resmed Limited, 1 I do not propose to undertake a self-initiated examination of the eligibility rules of other organisations in the absence of any objection or submission about that matter. There is no evidence or other information presently before the Commission about whether relevant employees could more conveniently belong to REEFSANT, or about the capacity of REEFSANT to represent such persons. There is no basis to refuse consent under s 158(4).

[10] Based on the information in the application I am satisfied that there is no relevant agreement or understanding for the purpose of s 158(6), and that the consideration in s 158(7) is not applicable to the present application.

[11] I consider that in all the circumstances it is appropriate to consent to the alteration. I consent to the alteration of the eligibility rules of the association. The alteration will take effect from 8 September 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR722323>

 1  [2016] FWCFB 22 at [120]