The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch

[2016] FWC 9076

[2016] FWC 9076

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 Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch
(D2016/73)

VICE PRESIDENT HATCHER SYDNEY, 20 DECEMBER 2016

Application/Notification for an extension by a transitionally recognised association by The Australia Rail, Tram and Bus Industry Union of Employees, West Australia Branch.

Introduction

[1] On 12 December 2016 the Australian Rail, Tram and Bus Industry Union of Employees West Australia Branch (ARTBIUEWA), 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 ARTBIUEWA’s behalf by Paul Robinson, its 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 the absence of an extension being granted, the transitional recognition of the ARTBIUEWA 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 ARTBIUEWA 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 ARTBIUEWA is registered as an organisation of employees under the Workplace Relations Act 1979 (WA) (WA Act). 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 Australian Rail, Tram and Bus Industry Union (ARTBIU) as the federal counterpart of the ARTBIUEWA (see reg. 8A and item 316 of Schedule 1A).

[4] Accordingly the ARTBIUEWA’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 ARTBIU.

[5] The ARTBIUEWA’s application was accompanied by a witness statement with a number of annexures made by Mr Robinson on 12 December 2016, which sets out the grounds for the making of the application. It included an outline of the measures that the ARTBIUEWA has implemented to rationalise its affairs with those of the ARTBIU, its federal counterpart. Further written submissions in support of the application were filed on 16 December 2016.

Evidence

[6] Mr Robinson’s witness statement referred to and annexed a Deed of Agreement (Agreement) entered into by the ARTBIUEWA and the ARTBIU on 21 May 2015 pursuant to s.71(6) of the WA Act. That Agreement:

• requires the ARTBIU to provide, oversee and/or perform industrial, financial, accounting, auditing, legal, compliance and advisory services for the ARTBIUEWA;

● provides for joint decision-making in terms of varying services other than those identified above;

● acknowledges that a party will not collect membership fees from a member where the member belongs to the other party, so that the parties effectively behave as one union;

● provides for joint membership application forms and adding and removing members from both organisations simultaneously;

● provides for joint expenditure and resourcing including but not limited to office space, utilities and other outgoings, as well as the payment of joint employees including all wages, all accrued entitlements and any other associated administrative expenses;

● establishes a dispute resolution procedure in respect of any disputes arising between the ARTBIUEWA and the ARTBIU; and

● provides for joint decision concerning the disposal of assets (including real property).

[7] Mr Robinson stated that on 20 November 2015 an application was been lodged pursuant to s.71(7) of the WA Act for approval of the Agreement by a Full Bench of the Western Australian Industrial Relations Commission. Once the Agreement is approved, it may be registered by the WA Registrar as an alteration to the ARTBIUEWA’s rules and the ARTBIUEWA may be exempted from compliance with such provisions of the WA Act and to such extent as the Full Bench may direct having regard to the terms of the Agreement. There were some technical difficulties with the Agreement under the WA Act which required it to be varied and re-executed, and this has caused delay in progressing the approval application. The ARTBIUEWA however intends to progress the application before the Full Bench as soon as possible.

[8] The delay required the Western Australian Public Transport Authority Branch of the ARBTIU (Branch) to apply for a certificate under s.269(2)(a) of RO Act that the Branch’s financial affairs were encompassed by the financial affairs of the ARTBIUEWA. A certificate to that effect was issued by the Commission (Delegate Enright) on 2 August 2016. 1 In issuing the certificate, the Delegate recorded that he was satisfied that the ARTBIUEWA was composed of substantially the same members as the Branch and substantially the same officers.

[9] Mr Robinson further stated that the ARTBIUEWA had previously, on 17 December 2014, been granted a certificate exempting it from holding elections for offices on the basis that the persons holding particular offices in the Branch are deemed to be the holders of corresponding offices in the ARTBIUEWA.

Conclusion

[10] I am satisfied, on the basis of the material contained in Mr Robinson’s witness statement and the submissions that the ARTBIUEWA has made progress towards rationalising its internal affairs with those of its federal counterpart, the ARTIBU. 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 ARTBIUEWA’s transitional recognition until 1 January 2018.

[11] 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 Australian Rail, Tram and Bus Industry Union of Employees West Australia Branch is extended until 1 January 2018.

VICE PRESIDENT

 1   PR583647

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