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

[2016] FWC 8967

[2016] FWC 8967

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, Distributive & Allied Employees' Association, New South Wales
(D2016/69)

VICE PRESIDENT HATCHER SYDNEY, 21 DECEMBER 2016

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

[1] On 1 December 2016 the Shop, Distributive and Allied Employees’ Association, New South Wales (SDAEA NSW), 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 SDAEA NSW’s behalf by Mr Bernie Smith, its State Secretary. 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 SDAEA NSW 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 SDAEA NSW 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 SDAEA NSW 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 SDAEA NSW (see reg. 8A and item 129 of Schedule 1A).

[4] 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(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 SDAEA NSW relied on two statutory declarations made by Mr Smith on 19 December 2016. In those declarations Mr Smith identified what had been done by the SDAEA NSW to rationalise its internal affairs with the SDAEA. The steps taken may be summarised as follows:

• The SDAEA NSW and the NSW Branch of the SDAEA (Branch) have the same Secretary (Mr Smith). They currently have different Presidents, but the organisations were working towards having the same person as President in the next 12 months.



• Insofar as the SDAEA and the Branch have overlapping coverage, that area of coverage is administered by the Branch only.



• Financial membership of the Branch confers financiality in the SDAEA NSW. Applicants for membership sign a single card for both organisations.



• The Branch and the SDAEA NSW have a close working relationship, and the Branch employs officers and organisers who supply services to the SDAEA NSW as required so that it may carry out its activities.



• With the support of the Committee of Management of the SDAEA NSW, the SDAEA on 16 December 2016 lodged an application pursuant to s.158A of the RO Act to expand its eligibility for membership to ensure that it has the same scope of coverage as the SDAEA NSW.



• The governing bodies of the SDAEA NSW and the Branch meet separately but concurrently.



• All membership income goes to the Branch.



• Right of entry permits are issued to and are exercisable by the SDAEA NSW 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 SDAEA NSW, 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 SDAEA NSW’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, Distributive and Allied Employees’ Association, New South Wales is extended until 1 January 2018.

VICE PRESIDENT

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