Shop Assistants and Warehouse Employees' Federation of Australia, Newcastle and Northern, New South Wales

[2016] FWC 8971

[2016] FWC 8971

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
Sch. 1, Cl. 6(2) RO Act - Application for an extension by a TRA

Shop Assistants and Warehouse Employees' Federation of Australia, Newcastle and Northern, New South Wales
(D2016/67)

VICE PRESIDENT HATCHER SYDNEY, 21 DECEMBER 2016

Application/Notification for an extension by a transitionally recognised association by The Shop Assistants and Warehouse Employees' Federation of Australia, Newcastle and Northern, New South Wales.

Introduction

[1] On 29 November 2016 the Shop Assistants and Warehouse Employees’ Federation of Australia, Newcastle and Northern New South Wales (Newcastle SAWEF), a transitionally recognised association (TRA), lodged an application pursuant to clause 6(2) of Schedule 1 of the Fair Work (Registered Organisations) Act 2009 (RO Act) seeking an extension of its transitional recognition. The application was signed on the Newcastle SAWEF’s behalf by Ms Barbara Nebart, its Secretary-Treasurer. Clause 6(1)(c)(i) of Schedule 1 of the RO Act provides that the transitional recognition of a TRA will end on the fifth anniversary of the earliest day on which an organisation can make an application in accordance with s.158A(2) of the RO Act unless an extension has been granted by the Commission. Section 158A(2) of the RO Act provides that an application cannot be made under that section before 1 January 2011 or such later day as the Minister declares in writing. On 13 December 2013 the then Minister declared 1 January 2012 as the earliest date under s.158A(2) of the RO Act upon which an application under s.158A(1) of the RO Act may be made (Fair Work (Registered Organisations) Declaration 2010). In an absence of an extension being granted, the transitional recognition of the Newcastle SAWEF will therefore cease on 1 January 2017.

[2] Clause 6(2) of Schedule 1 of the RO Act read in conjunction with cl.6(1)(c)(ii) provides that the Commission may, on application, grant a TRA an extension of its recognition until 1 January 2018 in prescribed circumstances. Clause 6(1)(c)(ii) provides that the recognition of a TRA will end on the sixth anniversary of the earliest date on which a s.158A(1) application may be made if an extension is granted under clause 6(2). Clause 6(2) provides:

(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 Newcastle SAWEF cannot satisfy the first condition in paragraph (a) of cl.6(2) 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 Newcastle SAWEF is registered as an organisation of employees under the Industrial Relations Act 1996 (NSW). It also has a federal counterpart. 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 Shop, Distributive and Allied Employees’ Association (SDAEA) as the federal counterpart of the Newcastle SAWEF (see reg. 8A and item 128 of Schedule 1A).

[4] Accordingly the Newcastle SAWEF’s application may only be granted on the basis that it satisfies the second condition in paragraph (b) of cl.6(2) - that is, it has made progress towards rationalising its internal affairs with those of its federal counterpart.

Evidence

[5] In support of its application, the Newcastle SAWEF relied on a statutory declaration made by Ms Nebart on 19 December 2016. In that declaration Ms Nebart stated that the Newcastle SAWEF had taken steps to rationalise its internal affairs with the SDAEA as follows:

• The Secretary-Treasurer of the Newcastle SAWEF is also the Secretary-Treasurer of the Newcastle and Northern New South Wales Branch of the SDAEA (Branch).



• The Newcastle SAWEF works in close coordination with the Branch.



• The SDAEA has applied pursuant to s.158A of the RO Act to enlarge its conditions of eligibility for membership so that it encompasses the entirety of the coverage of the Newcastle SAWEF. This application was initiated by Ms Nebart, is supported by the Committee of Management of the Newcastle SAWEF and was lodged on 15 December 2016.



• The area of coverage of the Newcastle SAWEF and the Branch, once fully aligned, will be administered jointly by the Newcastle SAWEF and the Branch.



• Members of the Newcastle SAWEF are also members of the SDAEA, with applicants for membership signing a single card for both organisations.



• Membership income is received by the Newcastle SAWEF only, and an agreed proportion goes to the Branch.



• Staff are employed by the Newcastle SAWEF but are made available as required for use by the Branch.



• The governing bodies of the Newcastle SAWEF and the Branch meet concurrently.



• Right of entry permits are issued to and are exercisable by the Newcastle SAWEF and the Branch and are used according to the areas of membership serviced.

Conclusion

[6] I am satisfied, on the basis of the materials submitted by the Newcastle SAWEF, that it has made progress towards rationalising its internal affairs with those of its federal counterpart, the SDAEA. Accordingly, the jurisdictional precondition in cl.6(2)(b) of Schedule 1 of the RO Act is satisfied, and I consider it appropriate to exercise my discretion in favour of granting an extension of the Newcastle SAWEF’s transitional recognition until 1 January 2018.

[7] I therefore order as follows:

Pursuant to clause 6(2) of Schedule 1 of the Fair Work (Registered Organisations) Act 2009, the transitional recognition of the Shop Assistants and Warehouse Employees’ Federation of Australia, Newcastle and Northern New South Wales is extended until 1 January 2018.

VICE PRESIDENT

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