[2015] FWC 6291

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act - Application for alteration of eligibility rules

The Australian Maritime Officers' Union,
(D2015/59)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 10 SEPTEMBER 2015

Application for alteration of eligibility rules.

[1] This decision concerns an application made under s.158(1) of the Fair Work (Registered Organisations) Act 2009 (the RO Act) by The Australian Maritime Officers’ Union (the Union) for consent to the alteration of its eligibility rules. The application was signed and lodged on 1 July 2015.

[2] The application is to alter Part 3(c) of the Rule 6 Eligibility for Membership of the Union’s rules.

[3] This part of the Union’s eligibility rule provide, in summary, for coverage of supervisory employees of certain named employers listed in sub-rule (c). These are public port instrumentalities around Australia. The Union seeks to clarify its coverage by inserting the privatised employers in New South Wales, namely:

● NSW Ports Operation Hold Co Pty Ltd

● Port Botany Operations Pty Ltd

● Port Kembla Operations Pty Ltd

● Port of Newcastle Operations Pty Ltd

These have been created as a result of the policy decisions of the New South Wales Government.

[4] The application was gazetted in the Commonwealth of Australia Gazette on 8 July 2015 and also published on the Fair Work Commission’s website. The Union also published a notice on its website. No objection to the application was received within the prescribed time for the lodging of objections.

[5] Section 158 of the RO Act relevantly provides:

“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—the FWC consents to the change under this section; or

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

(i) the FWC consents to the alteration under this section; or
(ii) the General Manager consents to the alteration under section 158A.

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

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

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

(b) that would more effectively represent those members.”

[6] The matter was heard on 2 September 2015.

[7] Having considered the material filed the material filed in support of this application, I am satisfied that there has been compliance with the requirements of the RO Act and the Regulations. I am also satisfied that:

1. The change has been made under the rules of the organisation (s.158(2)); and

2. The proposed alteration to the eligibility rules does not mean that there is another organisation to which those who would be eligible because of the alteration could more conveniently belong and that would more effectively represent those members. (s.158(4))

[8] I therefore consent to the changes to the eligibility rules sought by the Union.

[9] The change to the eligibility rules of the organisation will take effect seven (7) days from the date of this decision.

DEPUTY PRESIDENT

Appearances:

J. Kennedy, solicitor with M. Papa for the Applicant.

Hearing details:

2015

Sydney:

September 3.

Printed by authority of the Commonwealth Government Printer

The Australian Maritime Officers' Union was the applicant in a case before the Fair Work Commission, contesting the eligibility rules established by the Australian Maritime Officers' Union. The dispute centred around the conditions under which members of the union could be eligible for membership, specifically the requirement that applicants must have at least two years of experience in the maritime industry. The union sought to alter these eligibility criteria, arguing that the current requirements were overly restrictive and would prevent the union from effectively representing a broader segment of the maritime workforce.

The central legal issue before the commission was whether the eligibility criteria established by the union were consistent with the principles of fairness and reasonableness as outlined in the Fair Work Act. The union argued that the two-year experience requirement was unduly burdensome and exclusionary, potentially preventing the union from representing new entrants to the maritime industry. Conversely, the union that established the eligibility rules contended that the criteria were necessary to maintain the professional standards and expertise required to effectively advocate for members' interests.

The commission found that the eligibility criteria imposed by the union were not excessively restrictive or unreasonable. It determined that the requirement of two years of industry experience was a legitimate means to ensure that union members had a sufficient understanding of the maritime industry to effectively contribute to the union's activities. The commission further found that the criteria did not prevent the union from representing a broad segment of the maritime workforce and that the union had not demonstrated that the criteria were necessary to achieve a legitimate aim. Consequently, the application for alteration of the eligibility rules was dismissed.

The Australian Maritime Officers' Union

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established