Real Estate Employers’ Federation

[2019] FWC 5206

[2019] FWC 5206

FAIR WORK COMMISSION

DECISION

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

Real Estate Employers’ Federation
(D2019/7)

DEPUTY PRESIDENT BINET PERTH, 15 AUGUST 2019

Application for alteration of eligibility rules.

[1] On 16 April 2019, the Real Estate Employer’s Federation (REEF) filed an application (Application) pursuant to section 158(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act) with the Fair Work Commission (FWC) for consent to the alteration of the eligibility rules of REEF to extend its coverage to be able to accept real estate employers in Western Australia as members.

[1] On 11 June 2019, notification was received from the Real Estate Employers’ Federation of WA (Inc) (REEFWA) indicating that they objected to the Application (Objection).

[2] In light of the above, the Application was listed for a Hearing before Deputy President Binet in Perth at 10:00am, Friday 26 July 2019 for the determination of the Application.

[3] REEFWA was represented at the hearing by Mr Steve Farrell of the Real Estate Employers’ Federation of WA (Inc). Mr Farrell appeared as of right pursuant to section 596(4) of the FW Act.

[4] REEF sought permission to be represented by Mr Stephen Marriott of Moray & Agnew Lawyers. REEFWA did not object to REEF being represented at the Hearing. Having considered the submissions made by REEF leave was granted to REEF to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the Application to be dealt with more efficiently, taking into account the complexity of the Application.

Background

[5] REEF is an association of employers registered under the RO Act and as such is an ‘organisation’ for the purposes of the RO Act and the Fair Work Act 2009 (Cth) (FW Act). 1

[6] REEF is eligible under its current Rules to enrol real estate employers as members in New South Wales, the Australian Capital Territory, Victoria, Queensland and Tasmania. Another federally registered industrial organisation of employers, the Real Estate Employers Federation – South Australia and Northern Territory is eligible to enrol members under its Rules in South Australia and the Northern Territory. The only state for which there is not a federally registered association for employers in the real estate industry is Western Australia. 2

[7] According to its Rules the purpose REEF was established was to advance the cause and represent the interests of its members, including but not limited to: 3

a. To promote and protect the interests of its members.

b. To bring or refer matters to and represent members and/or interested persons before Fair Work Australia, the Industrial Relations Commission of New South Wales or such other arbitral tribunals or Courts as may from time to time exercise like jurisdiction to that Commission, the Federal Magistrate’s Court, the Federal Court, the Chief Industrial Magistrates Court, the High Court of Australia, any Supreme Court, any County, District or Local Court, Boards of Reference, Inquiries, Commissions, Royal Commissions and other tribunals, courts, arbitrators, mediators and bodies, and to represent members and/or interested persons at conferences, meetings and discussions with unions and other organisations of employees or employers, government and instrument of government.

c. To seek and maintain registration as an industrial organisation of employers under the FW Act.

d. To further the objects of the FW Act.

e. To act as an Industrial Organisation of Employers.

f. To assist in negotiations relating to the settlement of disputes between members and their employees.

g. To represent the interests of members in negotiating the establishment of and/or variation of industrial awards and agreements as defined by the FW Act.

h. To establish and maintain co-operation, collaboration and close relations with other organisations or associations having similar purposes.

i. To improve the relations of members with their employees.

j. To secure to the members of the Federation, all the advantages of unity of action and to protect the interests of members in any lawful manner in all matters.

k. To secure the aid of public opinion and Government policy in the development and advancement and in the popularising of enterprises engaged in by its members.

l. To purchase, take on lease or license or hire or otherwise acquire real or personal property of any kind in furtherance of the objects and to sell, exchange or otherwise dispose of any property on such terms as may be considered expedient.

m. To promote, support and to initiate action necessary to establish educational facilities for members.

n. To provide for the appointment of committees to deal with local matters or particular matters of general interest of the Federation.

o. To act in conjunction, affiliate with or amalgamate with, and to appoint representatives to any association or organisation of employers which furthers the purpose of the Federation.

p. To promote or oppose legislative and other measures affecting or likely to affect members.

q. To prosecute or defend any suits, applications or proceedings before the court, tribunal or like body whatsoever as may be deemed necessary or expedient in the interests of all or any of the Federation members.

r. So far as may be necessary for or incidental to the purposes of the Federation to make, draw, accept, endorse or negotiate cheques, promissory notes, bills of exchange or other negotiable instruments and to borrow or raise money in such manner as the Federation may think fit.

s. To provide members with industrial services.

t. To edit or publish any newspaper, periodical, journal or book.

u. To enter into any agreement with the employees of the Federation deemed to be for the mutual benefit of both the Federation and such employees.

v. To enter into any arrangements with any governments or authorities, municipal or local or otherwise, that may seem conducive to the purposes for which the Federation has been established or any of them and to obtain from any such government or authority any rights, privileges or concessions which the Federation may think desirable to obtain and to carry out, exercise and comply with any such arrangement, rights, privilege, or concessions.

[8] REEF has been established for more than 50 years.

[9] REEFWA is an association, incorporated under the Associations Incorporation Act 2015 (WA) (Associations Act). It is not a registered industrial organisation of employers for the purposes of the Industrial Relations Act 1979 (WA). It is not registered as an association of employers under the RO Act and is not an ‘organisation’ for the purposes of the RO Act or the FW Act. 4

[10] REEFWA’s Rules provide that the objects of REEFWA, inter alia, are to promote, protect, preserve and represent by any lawful means the industrial interest of REEFWA and its members and to provide advice, guidance and assistance to any Member who, in an industrial matter or dispute, merits such assistance in the consideration of REEFWA. 5

[11] REEFWA has been in existence for approximately 30 years and provides the following services to employers in the Western Australian real estate industry: 6

a. The promotion of the interests of real estate employers.

b. Business advocacy services including business advocacy services on behalf of real estate employers; Lobbying (promoting, publicising or otherwise representing the interests or concerns of others) including lobbying on behalf of real estate employers.

c. Human resource management services including provision of guides, policies, information (including online) and advice on human resource management in the real estate industry.

d. Consultancy services relating to employment in the real estate industry.

e. Education and training including provision of continuing professional education in the field of employment in the real estate industry.

f. Provision of training courses (including online training courses) in the field of real estate.

g. Arranging and conducting of conferences, seminars, workshops (training), networking events.

h. Legal services including provision of legal advice in employment law, workplace law and industrial relations.

i. Provision of representation in employment, workplace and industrial relations disputes.

j. Provision of employment contracts for use in the real estate industry.

k. Occupational health and safety services including consultancy services relating to occupational health and safety in the real estate industry.

l. Providing information and advice (including online) about occupational health and safety in the real estate industry.

[12] REEFWA does not employ any staff. Any services it delivers are performed on an ex gratia basis by its members and officer bearers or by commercial arrangement with the Chamber of Commerce and Industry in Western Australia.

Key Statutory Provisions

[13] Section 158 sets out the mechanism by which an organisation may alter its eligibility rules.

“s.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.

(3) The FWC must not consent to a change in the name of an organisation unless the FWC is satisfied that the proposed new name of the organisation:

(a) is not the same as the name of another organisation; and

(b) is not so similar to the name of another organisation as to be likely to cause confusion.

(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.

(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.

(10) This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:

(a) determined by the FWC under subsection 163(7); or

(b) proposed to be made for the purposes of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or

(c) proposed to be made for the purposes of a withdrawal from amalgamation under Part 3 of Chapter 3.

Consideration

[14] In this Application REEF seeks consent for the following alteration to its rules of eligibility. 7

‘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, the Australian Capital Territory, Victoria, Tasmania, or Queensland or Western Australia 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.’

(Alteration)

[15] The Application was made on Form F68 and was accompanied by a Statutory Declaration by Mr Paul Byrne which detailed how the Alteration occurred. 8 There is no dispute and I am satisfied that the Alteration was made in compliance with the REEF Rules.

[16] The Application was gazetted with the Commonwealth of Australia Gazette on 7 May 2019 and published on the FWC website. 9

[17] The sole objector to the Application is REEFWA.

Does REEFWA have standing to object and be heard in relation to the Application?

[18] REEFWA submits that it has standing to heard in relation to the Objection because Regulation 124 of the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations) contemplates objections to applications for alterations to eligibility rules being made by interested organisations, associations and individuals. 10

[19] Regulation 124 of the RO Regulations the provides that:

“Any interested organisation, association or person (the objector) may, no later than 35 days after a notice of the receipt of an application under sub-regulation 121(1) (the original application) is published in the Gazette, lodge with the FWC a notice of objection to the change of name, or the alteration of the eligibility rules, to which the original application relates.”

[20] The RO Regulations define the term ‘organisation’ for the purposes of the RO Act and Regulations as organisations registered under the RO Act. However, the RO Regulations do not define the term ‘association’. REEFWA is an association incorporated under the Associations Act. REEFWA lodged the Objection within the timeframe contemplated by Regulation 124(A) of the RO Regulations and complied with the requirements in Regulation 14 of the RO Regulations.

[21] Regulation 124 of the RO Regulations clearly contemplates objections being made by bodies and individuals with an interest in an application. Given the overlap in potential membership REEFWA is an association with an interest in the Application. I am therefore satisfied that REEFWA has standing to make and be heard in relation to the Objection.

Grounds of Objection

[22] The sole objector to the Application, REEFWA, does not assert and there is no evidence before me that any of the grounds of objection set out in sections 158(4), (6) or (7) exist in relation to this Application. 11

[23] Section 158(8) of the RO Act expressly provides that the absence of these grounds for objection does not limit the grounds upon which consent to the Alteration can be refused.

[24] REEFWA have objected to the Application on the basis that both in their acronymic and expanded forms the names of REEF and REEFWA are substantially similar, and given that both organisations provide similar services, that members and potential members of REEFWA may be misled to believe that the organisations are related.

[25] REEFWA submit that if the Application is granted and REEF advertises its services in Western Australia that this would amount to passing off and/or misleading and deceptive conduct under Australian consumer law. REEFWA submit that it is contrary to the public interest to grant the Application because its effect would be to permit REEF to act unlawfully.

[26] The meaning of section 158(8) was considered by Vice President Hatcher in Application/Notification by the Australian Licensed Aircraft Engineer’s Association (ALEA). 12Vice President Hatcher stated that:

“[14] Subsection (8) makes it clear that the Commission has a general discretion as to the grounds upon which it may refuse to grant its consent.

[15] The proviso is that there is no equivalent in the RO Act to s.90 of the WR Act, which required the AIRC to take the public interest into account in the performance of its functions. The Commission’s discretion under s.158 must, however, be exercised in accordance with usual principles – that is, it must be exercised in a bona fide fashion having regard to the policy and purpose of the statute. 3 In this respect, s.5 of the RO Act is of significance, in that it sets out the legislature’s intention in enacting the RO Act.

Section 5 provides (excluding the note):

Parliament’s intention in enacting this Act

(1) It is Parliament’s intention in enacting this Act to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.

(2) Parliament considers that those relations will be enhanced and those adverse effects will be reduced, if associations of employers and employees are required to meet the standards set out in this Act in order to gain the rights and privileges accorded to associations under this Act and the Fair Work Act.

(3) The standards set out in this Act:

(a) ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and

(b) encourage members to participate in the affairs of organisations to which they belong; and

(c) encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

(d) provide for the democratic functioning and control of organisations; and

(e) facilitate the registration of a diverse range of employer and employee organisations.

(4) It is also Parliament’s intention in enacting this Act to assist employers and employees to promote and protect their economic and social interests through the formation of employer and employee organisations, by providing for the registration of those associations and according rights and privileges to them once registered.

(5) Parliament recognises and respects the role of employer and employee organisations in facilitating the operation of the workplace relations system.

[16] Leaving aside the mandatory provisions in subsections (2) and (4), the Commission would endeavour to exercise its discretionary power to grant or refuse consent to alterations to eligibility rules in a way which gives effect to the legislature’s intention as expressed in s.5 and as otherwise expressed in the text of the RO Act.”

[27] The Objection is not expressed as having any regard to the policy and purpose of the RO Act.

[28] In fact, reference to the policy or purpose of the RO Act weighs against the Objection being granted given that REEFWA is not subject to the regulation and oversight imposed on REEF by the RO Act and FW Act. Regulations and oversights which are intended to ensure that federally registered organisations are representative and accountable to their members, have high standards of accountability and function democratically. Nor can REEFWA offer its members the privileges associated with federal registration such as an automatic right of appearance (notwithstanding that it appears that REEFWA has in the past held itself out as being entitled to such privileges.

[29] Given the evidence that REEFWA operates without paid employees it would appear that REEF is potentially more operationally capable of promoting and protecting the economic and social interests of Western Australian real estate employers as envisaged by the RO Act than REEFWA.

[30] The Objection raises a concern that if the Application was consented to, there is a risk that REEF may decide to engage behaviour that amounts to passing off, misleading and/or deceptive conduct under Australian consumer law.

[31] No evidence was led by REEFWA that the branding, websites or marketing of REEF are so similar to REEFWA that the two organisations might be easily confused.

[32] Nor did REEFWA lead any evidence that suggested that REEF has in the past or intended in the future to behave unlawfully.

[33] REEFWA did not identify which particular provisions of any particular legislation it asserts that REEF may breach.

[34] REEFWA did not explain why it could not take proactive steps to inform its members and/or the industry more broadly of the likely entry of REEF to avoid or reduce the risk of confusion.

Conclusion

[35] The intent of the Objection appears to be to prevent an unregistered organisation being exposed to competition by a registered organisation subject to the prescriptive regulation and oversight.

[36] I am not satisfied that granting the Objection and refusing the Alteration would give effect to the legislatures intention in providing provisions for the registration and governance of organisations of employers and employees. In fact it would leave employers in Western Australia without access to a highly regulated organisation which possesses certain privileges and right by virtue of its registration which may be of significant use and value to such employers.

[37] I am not persuaded to exercise my discretion pursuant to section 158(8) of the RO Act to refuse consent to the Alteration.

[38] I therefore consent to the Alteration. The Alteration shall take effect on the date of this decision.

DEPUTY PRESIDENT

Appearances:

S. Marriott of Moray & Agnew Lawyers, for REEF

S. Farrell of Chamber of Commerce and Industry of Western Australia, for REEFWA

Hearing details:

Perth

2019

July 26

Printed by authority of the Commonwealth Government Printer

<PR710725>

 1 Summary of Agreed Facts filed 25 July 2019 at [1].

 2 Summary of Agreed Facts filed 25 July 2019 at [2].

 3   Real Estate Employers’ Federation. (2019, January 24). Rules of the Real Estate Employers’ Federation.

 4 Summary of Agreed Facts filed 25 July 2019 at [8].

 5   Exhibit R3.

 6   Exhibit R2.

 7   Exhibit A1.

 8   Exhibit A1.

 9 Summary of Agreed Facts filed 25 July 2019 at [7].

 10   Exhibit R2.

 11   Summary of Agreed Facts filed 25 July 2019 at [5]-[6].

 12   [2014] FWC 3658 at [14]-[15].