The Australasian Meat Industry Employees' Union, New South Wales Branch

[2016] FWC 9149

[2016] FWC 9149

FAIR WORK COMMISSION

DECISION

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

The Australasian Meat Industry Employees' Union, New South Wales Branch
(D2016/81)

VICE PRESIDENT HATCHER SYDNEY, 23 DECEMBER 2016

Application/Notification for an extension by a transitionally recognised association by The Australasian Meat Industry Employees' Union, New South Wales Branch.

Introduction

[1] On 19 December 2016 the Australasian Meat Industry Employees Union, New South Wales Branch (AMIEU NSW), a transitionally recognised association (TRA), lodged an application pursuant to cl.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 AMIEU NSW’s behalf by Ms Kristen Rogers, a legal officer. 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 the absence of an extension being granted, the transitional recognition of the AMIEU 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.

[1] The AMIEU 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 AMIEU NSW is registered as an organisation of employees under the Workplace Relations Act 1996. 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 (RO Regulations). Schedule 1A of the RO Regulations prescribes the Australasian Meat Industry Employees Union (AMIEU) as the federal counterpart of the AMIEU NSW (see reg. 8A and item 134 of Schedule 1A).

[2] Accordingly the AMIEU 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, the AMIEU.

Evidence

[3] In support of its application the AMIEU NSW relied upon a statutory declaration with a number of annexures made by Patricia Fernandez, it’s Acting Branch Secretary, on 20 December 2016. It includes an outline of the measures that the AMIEU NSW has implemented towards rationalising its affairs with those of the AMIEU, its federal counterpart. Further submissions in support of the application were filed on 21 December 2016 by Ms Rodgers.

[4] The substance of Ms Fernandez’s declaration can be summarised as follows:

• Dual membership for union members: In late 2008 or early 2009, the AMIEU NSW reviewed its membership application form to ensure that it was able to effected membership of both the AMIEU NSW and the NSW Branch of the AMIEU (Branch). The current membership form makes it clear that all members are joining both. All members hold dual membership in the AMIEU NSW and the AMIEU. However, the AMIEU NSW has broader membership coverage than the Branch; in particular in the cold storage industry the AMIEU NSW has coverage and has actively represented its cold storage members and negotiated enterprise agreements in the federal system. It has been able to do so pursuant to its TRA status. An application pursuant to s.158A of the RO Act to rectify this by expanding the AMIEU’s coverage under its eligibility rule is currently being prepared.



• Consolidated financial reporting: The AMIEU NSW and the Branch were well advanced in terms of preparing for integration of their financial affairs prior to the 2006 amendments to the Workplace Relations Act 1996. The finances are held and controlled by the Branch, with the AMIEU NSW taking effectively a subordinate role. The Branch undertakes the financial accounting and auditing, and based on those figures, two sets of reports are compiled in order to comply with the different reporting obligations required for the Branch in this Commission and for the AMIEU in the Industrial Relations Commission of NSW.



• Conformity of the governing bodies: The AMIEU NSW and the Branch each have a Committee of Management empowered to perform governance responsibilities and ensure smooth running of the entities. The two Committees of Management are composed identically, with members of one being members of the other, meet in parallel, thus effectively behaving as one body.



• Federal right of entry permits are held: As of 21 December 2016, all but two employees of the AMIEU NSW hold federal right of entry permits as officials of the Branch. Two employees hold federal right of entry permits as officials of the AMIEU NSW by virtue of TRA arrangements.



• Behaving as one union: The AMIEU NSW and the Branch mirror functions and activities, utilise the same office space, the same office holders, the same finances and have joint membership for Union members.



• Purpose: The overall purpose of taking these measures has been to rationalise the affairs of the AMIEU NSW and the Branch so as to reduce administrative costs to members, reduce replication of services to its members and to enhance the efficiency and effectiveness of representation members.

Conclusion

[5] I am satisfied, on the basis of the materials provided by the AMIEU NSW, that the AMIEU NSW has made progress towards rationalising its internal affairs with those of its federal counterpart, the AMIEU. 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 AMIEU NSW’s transitional recognition until 1 January 2018.

[6] 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 Australasian Meat Industry Employees Union, New South Wales Branch is extended until 1 January 2018.

VICE PRESIDENT

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