Real Estate Employers’ Federation of New South Wales, The

[2013] FWC 4265

[2013] FWC 4265

FAIR WORK COMMISSION

DECISION

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

Real Estate Employers’ Federation of New South Wales, The
(D2013/111) (D2013/112)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 2 JULY 2013

Application to change both the eligibility rules and the name of the organisation - D2013/111 & D2013/112.

[1] This decision concerns two applications (in D2013/111 and D2013/112) made under s.158(1) of the Fair Work (Registered Organisation) Act 2009 (“the RO Act”) by the Real Estate Employers’ Federation of New South Wales (the Federation), for consent, first, to change its eligibility rules and secondly, to change the name of the Federation. Both applications were lodged on 18 April 2013, and the matters were heard on 27 June 2013.

[2] The first application seeks the consent of the Fair Work Commission (FWC) to the alteration of the Federation’s eligibility rule. The current eligibility rule at Sub Rule 5 of the Association’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 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 including the words “and/or the Australian Capital Territory” in sub rule 5. By so altering the eligibility rule, the Federation’s geographic coverage of the Federation is extended.

[4] The change of name of the Federation as sought is consequent to the above alteration to the Federation’s eligibility rule. The change of name of the Federation approved by the Federation excludes the words “Real Estate Employers’ Federation of New South Wales” and substitutes the words “Real Estate Employers’ Federation”.

[5] Both applications before me were gazetted on 1 May 2013. No objections were received in relation to either 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 - FWA consents to the change under this section;

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

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

...

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

(3) FWA must not consent to a change in the name of an organisation unless FWA 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) FWA 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 FWA, another organisation:

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

(b) that would more effectively represent those members.

...

(6) FWA 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) FWA 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 FWA 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 FWA may refuse to consent to an alteration of the eligibility rules of an organisation.

(9) Where FWA 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

[6] I am satisfied that the applications have been made in accordance with the Rules of the Federation, as required by s.158(2) of the RO Act.

[7] In the declarations by the President of the Federation that accompanied the two applications, the Federation declared that notice was provided to executive committee members of the Federation one month prior to the annual general meeting on 15 April 2013 of the intention to alter the Rules of the Federation and change the Name of the Federation.

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

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

[10] 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.

[11] I am satisfied that the name “Real Estate Employers’ Federation” is not the same as the name of any other organisation registered under the RO Act, and is not so similar to the name of the organisation as to cause confusion. There is another registered organisation, the “Real Estate Employers Federation of South Australia and the Northern Territory” however both organisations clearly have distinct identities, with separate geographical areas of coverage. I note that the Real Estate Employers Federation of South Australia and Northern Territory did not object to the proposed change of name of the Federation.

Conclusion

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

[13] The alterations will come into operation from 11 July 2013.

SENIOR DEPUTY PRESIDENT

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