The Australian Workers' Union, New South Wales

[2016] FWC 8521

[2016] FWC 8521

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 Workers' Union, New South Wales
(D2016/62)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 29 NOVEMBER 2016

Application for extension of TRA.

[1] On 14 October 2016 The Australian Workers’ Union, New South Wales (the Applicant) lodged an application to extend its status as a Transitionally Recognised Association (TRA) pursuant to Schedule 1 Clause 6 of the Fair Work Registered Organisations Act 2019 (the RO Act).

[2] The application was signed on behalf of the Applicant by its Secretary, Mr Russell Collison.

[3] The Applicant seeks an extension to its status on the basis that it has made substantial progress but not yet completed rationalising its internal affairs with those of its Federal counterpart, The Australian Workers’ Union (AWU).

[4] I note that, in practice, the Applicant operates as, or in conjunction with, the New South Wales Branch of the AWU. The Applicant and the AWU wish to operate in both the Federal and New South Wales industrial systems. The Fair Work Commission (the Commission) should encourage this consistent with the intention of the provisions of the RO Act.

[5] Since the AWU amalgamated with the Federation of Industrial Manufacturing and Engineering Employees (FIMEE), it has operated with three branches in New South Wales. Mr Collison was the Secretary of the Greater New South Wales Branch as well as of the Applicant. This branch merged with the Newcastle and South Coast Branches this year (see RE2016/159 [2016] FWCD 5704). Mr Collison is now interim Secretary of the New South Wales Branch of the AWU.

[6] The Applicant seeks to extension of its TRA status mainly so that the AWU has more time to apply to vary its Conditions of Eligibility pursuant to s.158A of the RO Act to cover persons currently eligible to be members of the Applicant but not the AWU

Relevant Legislation

[7] The TRA regime was devised to encourage rationalisation of Australia’s mish-mash of federal and state registered unions. It was also necessary to ensure that when coverage of the federal industrial system was substantially expanded following the Workchoices legislation and the Fair Work Act 2009, particular unions were not disadvantaged.

[8] The process for applying for TRA status is dealt with in Schedule 1 Clause 2(1) of the RO Act as follows:

“2 Application for transitional recognition

(1) A State-registered association may apply to the General Manager for transitional recognition under this Schedule if:

(b) immediately before the commencement of this Schedule, it had at least one member who was:

(i) an employee whose employment was subject to a State award, a State employment agreement or a State or Territory industrial law; or
(ii) an employer in relation to such an employee; and

(c) immediately before the commencement of this Schedule, it was entitled to represent the industrial interests of the member in relation to work that was subject to the State award, the State employment agreement or the State or Territory industrial law; and

(d) on the reform commencement, the employee will become bound by, or the employment of the employee will become subject to, a preserved State agreement or a notional agreement preserving State awards if he or she continues in that employment; and
(e) it is not also an organisation, or a branch of an organisation.”

[9] Section 9A of the RO Act defines a “federal counterpart” organisation:

“9A Meaning of federal counterpart

(1) For the purposes of this Act, a federal counterpart for a particular association of employers or employees registered under a State or Territory industrial law is an organisation prescribed by the regulations to be a federal counterpart of that association.

(2) For the purposes of this Act, if subsection (1) does not apply in relation to a particular association of employers or employees registered under a State or Territory industrial law, a federal counterpart for the association is:

(a) an organisation that has a branch (including a division of such a branch or a constituent part of such a branch) in that State or Territory that has or purports to have:

(i) substantially the same eligibility rules as the association; and
(ii) a history of integrated operation with the association; or

(b) if paragraph (a) does not apply—an organisation of which the association has purported to function as a branch (including a division of a branch or a constituent part of a branch).”

[10] Regulation 8A of the Fair Work (Registered Organisations) Regulations 2009 (the RO Regulations) was made pursuant to s.9A, it provides:

“8A Prescribing federal counterpart

(1) For subsection 9A (1) of the Act, an organisation mentioned in column 3 of an item in Schedule 1A is prescribed as the federal counterpart of an association of employers or employees registered under a State or Territory industrial law mentioned in column 2 of the item.

(2) To avoid doubt, the validity or operation of an item in Schedule 1A is not affected merely because:

(a) the name of an organisation or association changes for a reason that is not associated with a change in eligibility rules or coverage; or

(b) an error or misdescription is made in the name of an organisation or association.”

[11] The list of counterpart organisations is contained in Schedule 1A of the RO Regulations. That list was finalised by the ACTU in a difficult process during 2010/2011, and endorsed by the ACTU Executive. The Applicant and its federal counterpart is Item 133.

[12] 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 date declared by the Minister pursuant to s.158A(2).

[13] Clause 6 of Schedule 1 provides:

“6 End of transitional recognition

(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.

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

(i) the day (the default day) that is the later of the fifth anniversary of the day the Fair Work Amendment (Transfer of Business) Act 2012 commenced and a day prescribed by the regulations;
(ii) if the FWC grants the association an extension under subclause (2)—the anniversary of the default day;
(iii) if the FWC grants the association a further extension under subclause (3)—the second anniversary of the default day.

(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.”

[14] On 13 December 2010, the then Minister, Chris Evans designated 1 January 2012 as the relevant date. Therefore in the absence of an extension being granted, the transitional recognition of the Applicant will cease on 1 January 2017.

Commission Proceedings

[15] The matter was heard on 18 November 2016 in Sydney.

[16] The Applicant was represented by Mr G. Beard.

‘

Consideration

[17] It can be seen that an extension of one year, to 1 January 2018, can be granted by the Commission if it is satisfied that the Applicant has made progress “towards becoming an organisation or rationalising its internal officers with those of its federal counterpart”. Obviously, only the second limb is relevant to this application. A further extension of one year may be granted, upon further application, if “further progress” is made and extenuating circumstances exist.

[18] It seems to me that the matters which are likely to be relevant in considering whether progress has been made in rationalising the operation of the parallel organisations are:

● Ownership of real property
● Ownership of other assets
● Membership
● Membership income
● Elections
● Employment of staff
● Meetings of governing bodies
● Right of entry permits

[19] In respect of these matters, the AWU has operated as the principal operating entity. This is in contrast to the “Australian Nursing and Midwives Federation TRA’s” that I have previously dealt with in extension decisions. Real property and other assets, membership income and employment of staff have been by the relevant branch of the AWU. Membership has been jointly held. There have been just one set of elections. All officials have Federal Right of Entry Permits. Parallel meetings of governing bodies take place.

[20] More time is required to effect the integration of the previous three branches of the AWU in New South Wales into the New South Wales Branch and to reflect the coverage of the Applicant into the AWU New South Wales Branch.

[21] I was also advised, at the hearing, that the Applicant is likely to amalgamate with the Funeral and Allied Industries Union under the New South Wales legislation. This additional coverage will then need to be reflected in the rules of the AWU.

Conclusion

[22] In all the circumstances, I am satisfied that the Applicant has made progress towards rationalising its internal affairs with those of its federal counterpart, AWU. Accordingly, it is appropriate to grant an extension of the Applicant’s TRA status.

Order

Pursuant to Schedule 1 Clause 6(2) of the Fair Work (Registered Organisations) Act 2009, an extension of The Australian Workers’ Union, New South Wales’s Transitionally Recognised Association status is granted. The Australian Workers’ Union, New South Wales is now transitionally recognised until 1 January 2018.

DEPUTY PRESIDENT

Appearances:

G. Beard for The Australian Workers’ Union, New South Wales.

Hearing details:

2016

November 18.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR587972>