Shop, Distributive & Allied Employees' Association, New South Wales

[2017] FWC 6564

[2017] FWC 6564

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
Sch 1, cl 6(3) - Application for an extension of the recognition of a Transitionally Registered Association

Shop, Distributive & Allied Employees' Association, New South Wales
(D2017/14)

VICE PRESIDENT HATCHER SYDNEY, 19 DECEMBER 2017

Application/Notification for an extension of recognition by a transitionally recognised association by the Shop, Distributive & Allied Employee's Association, New South Wales.

Introduction

[1] On 1 December 2017, the Shop, Distributive and Allied Employees’ Association, New South Wales (SDAEA NSW), a transitionally recognised association (TRA), lodged an application pursuant to cl 6(3) of Schedule 1 of the Fair Work (Registered Organisations) Act 2009 (RO Act) seeking a further extension of its transitional recognition. The application was signed on the SDAEA NSW’s behalf by Mr Bernie Smith, its State Secretary. Clause 6(1)(c)(i) of Schedule 1 of the RO Act provides:

(1)  The recognition under this Schedule of a transitionally recognised association that has been granted transitional recognition in relation to an application under subclause 2(1) ends:

(a)  when it is cancelled under clause 5; or

(b)  when the association becomes an organisation; or

(c)  in any other case--at the end of:

(i)  unless subparagraph (ii) or (iii) applies--the fifth anniversary of the earliest day on which an organisation can make an application in accordance with subsection 158A(2); or

(ii)  if the FWC grants the association an extension under subclause (2) of this clause and subparagraph (iii) does not apply--the sixth anniversary of that day; or

(iii)  if the FWC grants the association a further extension under subclause (3) of this clause--the seventh anniversary of that day.

[2] The fifth anniversary for the purpose of cl 6(1)(c) is 1 January 2017.

[3] Subclauses 6(2) and 6(3) empower the Commission to grant the extensions referred to in cl 6(1)(c)(i) and (ii) as follows:

(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 FWC may, on application by a transitionally recognised association, grant the association a further extension for the purposes of subparagraph (1)(c)(iii) or (1A)(c)(iii) if the FWC is satisfied that:

(a)  the association has made further progress towards:

(i)  becoming an organisation; or

(ii) rationalising its internal affairs with those of its federal counterpart; and

(b) there are extenuating circumstances justifying the further extension.

[4] On 21 December 2016, the Commission granted an application by the SDAEA NSW for an extension until 1 January 2018 pursuant to clause 6(2) of Schedule 1 of the RO Act. 1 It did so on the basis that it was satisfied, based upon the materials submitted by the SDAEA NSW, that it had made progress towards rationalising its internal affairs with those of its federal counterpart, the Shop, Distributive and Allied Employees’ Association (SDAEA).

[5] In order to grant the further extension now sought by the SDA NSW pursuant to cl 6(3), the Commission must be satisfied that the SDA NSW has made further progress towards becoming an organisation or rationalising its internal affairs with those of its federal counterpart and there are extenuating circumstances justifying the further extension.

The SDAEA NSW cannot “become an organisation” (or make further progress towards becoming one) 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 SDAEA NSW is registered as an organisation of employees under the Industrial Relations Act 1996 (NSW). It also has a federal counterpart, the Shop, Distributive and Allied Employees’ Association (SDAEA). 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 SDAEA as the federal counterpart of the SDAEA NSW (see reg. 8A and item 129 of Schedule 1A). Accordingly the SDAEA NSW’s application may only be granted on the basis that it satisfies the second condition in paragraph (b) of cl 6(3) - that is, it has made progress towards rationalising its internal affairs with those of its federal counterpart, and that there are extenuating circumstances justifying the future extension under cl 6(3)(b).

Evidence and submissions

[6] In support of its application, the SDAEA NSW relied on a statutory declaration made by Mr Gerard Dwyer, the National Secretary-Treasurer of the SDAEA, dated 30 November 2017 as well as a letter attached to Mr Dwyer’s statement made by Mr Linton Duffin, Manager, Registered Organisations Section & Workplace and Economic Research Section, Fair Work Commission dated 22 November 2017. In Mr Dwyer’s witness statement he states that the SDAEA had made an application under s 158A of the RO Act on or about 15 December 2016 seeking the consent of the Commission’s General Manager to an enlargement of the eligibility rules of the SDAEA to include (inter alia) so much of the constitution rule of the SDAEA which was not or not clearly already included. This application has not yet been determined. The correspondence from Mr Duffin explained the course of consideration of the application as follows:

“Thank you for your correspondence, dated 13 November 2017, requesting an update

of the consideration of the above matters. I apologise for the length of time since the date of lodgement, however the applications have been under active consideration and I appreciate your patience.

By way of summary:

•  Staff of the Commission undertook an initial examination of the applications which led to the matters being gazetted in the Commonwealth of Australia Gazette in early January 2017;

•  Commission staff commenced a process of engagement and consultation with yourself to clarify some of the information contained in the applications and where necessary obtain additional information. The following documents were subsequently lodged:

•  on 6 April 2017, the supporting statutory declaration of Mr Christopher Gozenbeek;

•  on 7 April 2017, the supplementary statutory declaration of Mr Gerard Dwyer;

•  on 17 May 2017, the supporting statutory declaration of Ms Barbara Nebart

•  on 26 May 2017, the supporting statutory declaration of Mr Bernard Smith

•  on 5 June 2017, the supporting statutory declaration of Ms Sonia Romeo; and

•  on 8 September 2017, further submissions regarding the question of potential coverage of non-employees and the construction of the terms “university pharmacy students” as proposed in the eligibility rules.

As you are aware, section 158A provides that the General Manager must ‘consent to an alteration of the eligibility rules to extend them to apply to persons within the eligibility rule of an association registered under a State or Territory industrial law…’. Relevantly the requirement in section 158A requires that the alteration ‘extend’ the eligibility rule.

Additionally, section 158A(1)(e) provides that the General Manager must also be satisfied ‘as to such other matters (if any) as are prescribed by the regulations.’ Regulation 125A prescribes the matter that ‘the association…actively represents the class or classes of employers or employees to which the extension of eligibility rules will apply.’ Currently, the ability of the Commission to pinpoint clear evidence relating to the active representation of all of the proposed classes of employees across the four applications is not straightforward.

…”

[7] Mr Dwyer went on to say that the steps described in Mr Duffin’s letter were steps taken by the SDAEA in conjunction with the SDAEA NSW through their jointly engaged lawyers.

[8] The SDAEA NSW submitted, on the basis of the declaration of Mr Dwyer and the correspondence of Mr Duffin, that the SDAEA NSW had made further progress towards rationalising its internal affairs with that of the SDAEA. It also submitted that it was reasonable to infer from the correspondence that the SDAEA’s application might not be determined on or before 1 January 2018, in which case the transitional recognition of the SDAEA NSW would lapse before its affairs were properly rationalised with those of the SDAEA.

Conclusion

[9] I am satisfied, on the basis of the materials submitted by the SDAEA NSW, that it has made further progress towards rationalising its internal affairs with the SDAEA. Although, in strict terms, it might be said that the SDAEA’s application to vary its rules does not constitute any activity on the part of the SDAEA NSW, I consider that it is necessary to take a broader perspective. In order that the affairs of the SDAEA and the SDAEA NSW be properly rationalised, so that the SDAEA may ultimately take over all the functions and activity of the SDAEA NSW in the federal system, it is necessary for the SDAEA to acquire the full scope of coverage of the SDAEA NSW. This it is seeking to do through its application. The progression of the application throughout 2017 has required a significant degree of joint activity on the part of the SDAEA and the SDAEA NSW, as Mr Dwyer’s declaration and the correspondence from Mr Duffin explains. I consider that this may properly be characterised as the SDAEA NSW, in conjunction with the SDAEA, taking steps to rationalise its internal affairs with those of the SDAEA.

[10] I also draw the inference, as I was invited to do, that there is at the least a real possibility that the SDAEA’s rules application may not be finalised this year, with the result that the SDAEA NSW’s transitional recognition would end before the rationalisation of its internal affairs with those of the SDAEA had been completed. I consider that this constitutes extenuating circumstances justifying the further extension.

[11] The jurisdictional preconditions for the grant of an extension under cl 6(3) are therefore satisfied. I consider that I should exercise my discretion under cl 6(3) to grant the further extension so that the SDAEA and the SDAEA NSW may complete their joint rationalisation process. I therefore order as follow:

Pursuant to clause 6(3) of Schedule 1 of the Fair Work (Registered Organisations) Act 2009, the transitional recognition of the Shop, Distributive and Allied Employees’ Association, New South Wales is further extended until 1 January 2019.

VICE PRESIDENT

 1   [2016] FWC 8967

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