The Bacon Factories' Union of Employees, Queensland
[2015] FWC 3489
•27 MAY 2015
The attached document replaces the document previously issued with the above code on 27 May 2015.
A formatting error is corrected to create a new paragraph 11;
At (renumbered) paragraph 27, a number of typographical errors are corrected; and
At (renumbered) paragraph 43, a number of typographical errors are corrected, including that the closing sentence of the rule - below subclause (d) - is included.
Laura Fitzpatrick
Associate to Senior Deputy President Richards
Dated 1 June 2015
| [2015] FWC 3489 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work (Registered Organisations) Act 2009
s.18(b) RO Act - Application for registration by an association of employees
The Bacon Factories' Union of Employees, Queensland
(D2015/51)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 27 MAY 2015 |
Summary: application for registration as an organisation - objector’s claims - whether eligibility rule offends Schedule 1, Part 3 Reg 1.13 of the RO Act Regulations - “special circumstances” for Regulation 179(1) - Reg. 179(3) of the RO Act Regulations - eligibility rule partly beyond power - s.171A - s.166(3) - amendment seeking to reduce extent to which eligibility rule is relied upon - ambit of approval.
[1] The Bacon Factories’ Union of Employees, Queensland (“the BFUEQ”) is an association of employees registered under the provisions of the Industrial Relations Act (1999) (Qld) (“the State Act”).
[2] In 27 April 2006 the BFUEQ became a transitionally registered association under the provisions of Clause 2 of Schedule 10 to the Workplace Relations Act 1996 as amended by the Workplace Relations Amendment (Work Choices) Act 2005.
[3] The BFUEQ became a transitionally recognised association under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 upon the commencement of the Fair Work (Registered Organisations) Act 2009 (“the RO Act”) on 1 July 2009.
[4] On 13 January 2015, the BFUEQ made an application for registration as an organisation pursuant to the RO Act.
[5] On 5 February 2015 the Notice of Application for the Registration of an Association of Employees, that being the BFUEQ, appeared in the Commonwealth Gazette.
[6] Two Notices of Objection to the registration of the BFUEQ as an organisation under the Act were filed. One was by the Australian Workers’ Union (“the AWU”). The other notice of objection filed was from the Australian Municipal, Administrative, Clerical and Services Union (“the ASU”).
[7] On 20 April 2015, the ASU indicated that it withdrew its objection to the application. This means the AWU is the single objector.
The Statutory Provisions
[8] Section 19 of the RO Act sets out the conditions for registration as an organisation. Section 19 of the RO Act provides as follows:
19 Criteria for registration of associations other than enterprise associations
(1) The FWC must grant an application for registration made by an association (other than an enterprise association) that, under section 18, may apply for registration as an organisation if, and only if:
(a) the association:
(i) is a genuine association of a kind referred to in paragraph 18(a) or (b); and
(ii) is an association for furthering or protecting the interests of its members; and
(b) in the case of an association of employees—the association is free from control by, or improper influence from, an employer or by an association or organisation of employers; and
(c) in the case of an association of employers—the members who are employers have, in the aggregate, throughout the 6 months before the application, employed on an average taken per month at least 50 employees; and
(d) in the case of an association of employees—the association has at least 50 members who are employees; and
(e) the FWC is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Act and the Fair Work Act; and
(f) the rules of the association make provision as required by this Act to be made by the rules of organisations; and
(g) the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and
(h) a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation; and
(i) the registration of the association would further Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act; and
(j) subject to subsection (2), there is no organisation to which members of the association might belong or, if there is such an organisation, it is not an organisation:
(i) to which the members of the association could more conveniently belong; and
(ii) that would more effectively represent those members.
(2) If:
(a) there is an organisation to which the members of the association might belong; and
(b) the members of the association could more conveniently belong to the organisation; and
(c) the organisation would more effectively represent those members than the association would;
the requirements of paragraph (1)(j) are taken to have been met if the FWC accepts an undertaking from the association that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the organisation and the eligibility rules of the association.
(3) Without limiting the matters that the FWC may take into account in considering, under subparagraph (1)(j)(ii), the effectiveness of the representation of an organisation or association, the FWC must take into account whether the representation would be consistent with Parliament’s intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act.
(4) In applying paragraph (1)(e), the FWC must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under section 28 had the association been registered when the conduct occurred.
(5) The FWC must not, under this section, grant an application for registration of an association of employers or employees registered under a State or Territory industrial law if the association has a federal counterpart.
[9] Part 3 of Schedule 1 of the Fair Work (Registered Organisations) Regulations 2009 (“the RO Regulations”) condition the operation of s.19 of the RO Act as it applies to a transitionally recognised association. The BFUEQ has the benefit of the exclusions as it is a transitionally recognised association.
[10] Part 3 of Schedule 1 of the RO Regulations provides as follows:
Part 3 Modification of the Act for transitionally recognised associations
1.11 Application of Part
For clause 7 of Schedule 1 to the Act, this Part explains how section 19 of the Act applies to a transitionally recognised association.
1.12 Provisions not to apply
The following provisions of section 19 of the Act are taken not to apply to the association:
(a) paragraph 19 (1) (j);
(b) paragraph 19 (2);
(c) paragraph 19 (3).
1.13 Other criteria for recognition of transitionally recognised association – coverage rules
Section 19 (other than the provisions mentioned in clause 1.12) of the Act applies to the association as if the section required FWA to refuse to grant an application for recognition made by the association, unless the rules of the association state that the association is eligible to represent members only within the State in which it had been registered as a State-registered association immediately before its recognition as a transitionally recognised association.
Note State-registered association has the meaning given by sub item 1 (1) of Schedule 1 to the Act.
1.14 Change of rules not to prevent recognition
Section 19 (other than the provisions mentioned in clause 1.12) of the Act applies to the association as if the section provided that FWA is not prevented from granting an application for recognition made by a transitionally recognised association only because the association amended its rules after its recognition as a transitionally recognised association.
[11] In essence, the effect of the Schedule is to put aside concerns as to whether there is overlapping coverage of an applicant association with an existing registered organisation.
The objections
AWU – objection 1
[12] The AWU agitated an objection in respect of both s.19(1)(j) and s.19(2) of the RO Act. It claimed that it had constitutional coverage of the classes of employees which are described in the eligibility clause of the BFUEQ.
[13] As set out above, this is an objection which is misplaced for reasons that the BFUEQ is a transitionally recognised association and is exempted from the requirements of s.19(1)(j) and s.19(2) of the RO Act.
[14] It appears from its correspondence that the AWU may have conceded this point by the time of the hearing.
AWU – objection 2
[15] Other than that the AWU contended that the registration of the BFUEQ would not further Parliament’s intention in enacting the Act, for the purposes of s.19(1)(i) of the Act.
[16] The AWU argued that if the application was granted it would result in a direct overlap between its eligibility rules and those of the BFUEQ. This would result in confusion and industrial uncertainty and give rise to demarcation disputes which would restrict the performance of work or harm the business of an employer.
[17] It does not appear to me that the claim is made out: the BFUEQ has conducted its representational role in respect of the eligible class of employees for a very considerable period of time. The AWU did not seek to press its objection further in this regard at the hearing.
[18] I will deal with this objection further below in my wider consideration of the BFUEQ’s application.
AWU – objection 3
[19] The AWU contended that no undertaking has or could be given by the Applicant to settle the likely or probable demarcation dispute that might arise between the Applicant and the AWU.
[20] Again, for the reasons I discuss, this is not a consideration that weighs against the approval of the application, and the AWU did not seek to press its objection at the hearing.
AWU – objection 4
[21] For purposes of s.19(1)(h) of the Act, the AWU contended that the BFUEQ had not filed with its application a resolution demonstrating that the majority of the members present at a general meeting of the BFUEQ, or an absolute majority of the committee of management of the BFUEQ, had passed a resolution (in conformity with the rules of the association) in favour of registration of the BFUEQ. The AWU pointed out that the application claimed that schedule 6 thereof contain such a resolution as required under the RO Act but schedule 6 did not form part of the application.
[22] The AWU’s claim in this regard is correct, in so far as the BFUEQ’s application did not include the necessary declaration. This matter was rectified at the hearing by the subsequent actions of the BFUEQ. That is, the BFUEQ tendered a statutory declaration to the intended effect.
[23] The failure to provide the declaration with the application is at best a technical defect and one that arose from inadvertence only. It is a “special circumstance” for the purposes of regulation 179 of the RO Regulations, and cured by way of the exercise of discretion under regulation 179(3)(b) of the RO Regulations (in this instance).
AWU – objection 5
[24] The AWU claimed the BFUEQ’s coverage raises concerns and may need to be refused under Schedule 1, Part 3, clause 1.13 of the RO Regulations. This is because this clause requires the Commission to refuse an application:
“unless the rules of the association state that the association is eligible to represent members only within the state in which it had been registered as a state-registered association immediately before its recognition as a transitionally recognised association.”
[25] The AWU’s reasoning in this regard is that the BFUEQ’s eligibility clause is ambiguous in so far as it could be read to capture any person who resides in Queensland and is competent to be employed in the relevant callings. That is, employees working in other industries in other states could be members of the BFUEQ so long as they resided in Queensland.
[26] The AWU has a reasonable concern in this regard. Its own rules provide for it to have coverage in respect of the “meat preserving and meat trade generally.”
[27] Clause 5 of the BFUEQ’s rules provide for the eligibility for membership of the BFUEQ. Clause 5 reads as follows:
“The membership of the Union shall consist of any person or persons of good character who are employed or are competent to be employed in any calling:
(a) in or in conjunction with the ham and bacon manufacturing industry at a factory of foodstuffs of which beef, veal, mutton, lamb, pork, or bacon is a constituent part and/or
(b) in or in connection with or incidental to the meat preserving industry and/or
(c) the slaughtering of livestock and/or the handling of beef, veal, mutton, lamb, pork, or bacon in such establishments.
Provided that forepersons shall not be eligible for membership of the Union and members are:
(d) only persons employed in Queensland; or
(e) if not employed, but are competent to be employed, in the callings (a) - (c), reside in Queensland.
Without limitation to any other part of this eligibility rule the Union will consist of such other persons, whether employees in the industry or not, as have been elected officers of the Union, and admitted as members thereof.” [My emphasis]
[28] The BFUEQ contends that such a possibility cannot arise because sub rule (d) of the BFUEQ’s eligibility rule expressly precludes employees not employed (in Queensland) from membership.
[29] The AWU conceded, however, that:
“[w]e accept that the BFUEQ’s interpretation of how sub-rule (e) operates is probably correct” and that the AWU’s arguable interpretation of the BFUEQ’s eligibility clause “is not the intent of the rule.”
[30] For my part I have proceeded on the basis that the BFUEQ’s eligibility clause confines its membership to persons employed in Queensland in the requisite callings, or else who are persons who are not employed but who reside in Queensland and are competent to be employed in the relevant callings.
[31] It does not appear to me that there is a risk of some kind that is relevant to this registration application arising from the AWU’s (residual) concerns.
[32] That said, the matter of concern to the AWU is cured in its entirety as a result of the following discussion of an amendment to the application, which has arisen as an unanticipated corollary of the AWU’s objection.
Residual issue regarding AWU - objection 5: whether BFUEQ eligibility rule within power
[33] The BFUEQ’s solicitor helpfully brought to my attention the unavoidable incompatibility of the BFUEQ’s rules with the RO Act in respect of the circumstances under which an “employee” can be taken to be a member of an organisation.
[34] In this respect, s. 171A of the RO Act provides:
171A Cessation of membership if member is not an employee etc.
(1) If a person is a member of an organisation and the person is not, or is no longer:
(a) if the organisation is an association of employers—a person of a kind mentioned in paragraph 18A(3)(a), (b), (c) or (d); or
(b) if the organisation is an association of employees—a person of a kind mentioned in paragraph 18B(3)(a), (b), (c) or (d); or
(c) if the organisation is an enterprise association—a person of a kind mentioned in paragraph 18C(3)(a), (b), (c) or (d);
the person’s membership of the organisation immediately ceases.
(2) Subsection (1) has effect despite anything in the rules of the organisation.
[35] Because of s.171A of the RO Act, once a person ceases to be an employee in the relevant callings, the person ceases to be a member of the organisation. This may be to a contrary effect than rule 5(e) of the BFUEQ’s rules.
[36] That said, s.166(3) of the RO Act performs deeming function as follows:
166 Entitlement to become and to remain a member
Employee organisations
[...]
(3) A person who is qualified to be employed in a particular occupation, and seeks to be employed in the occupation:
(a) is taken to be an employee for the purposes of this section; and
(b) in spite of anything in the rules of the organisation, is not to be treated as not being eligible for membership of an organisation merely because the person has never been employed in the occupation.
[37] Rule 5(e) of the rules of the BFUEQ is redundant in so far as it may be argued that it seeks to give general effect to the function of s.166(3) of the RO Act. But regardless, rule 5(e) does not conform with s.166(3) of the RO Act in that it does not mirror its particular terms or scope as to eligibility.
[38] In essence, the BFUEQ’s eligibility clause (at 5(e)) makes provision for a circumstance not permissible under the RO Act (though retention of that provision is important for the BFUEQ’s interests at the State level). Nor does clause 5(e) of the BFUEQ’s rules suggest any compatibility with s.166(3) of the RO Act, which is more directive as to the requirements for maintaining eligibility outside of employment in the relevant callings.
[39] As a consequence of the operation of s.171A and s.166(3) of the RO Act, rule 5(e) appears seek to operate beyond power as to coverage.
[40] In my view this is a matter that can be dealt with by allowing the BFUEQ an opportunity to amend its application by seeking to rely only on its eligibility clause to a lesser extent than that it originally envisaged.
[41] I considered an application to amend an eligibility clause in the course of a proceeding at a previous time [see [2013] FWC 8354 at PN 26], with the effect of enabling the continued hearing and final determination of the application for registration (without requiring the rules to be amended further, including being re-certified on re-application to the State Registrar). My reasoning at that time, which I still consider to be apposite despite that application being made under s.158 of the RO Act, was as follows:
“In my view the further rule alteration as cited above in settlement with the CEPU (which has the effect of writing down the United Voice eligibility rule) falls within the scope and ambit of the original application and requires no added attestation or demonstration of approval. Such an outcome (a limitation on the scope of the rule alteration sought) may always have been a possibility, I add, by virtue s.158(2) of the RO Act. This would also suggest - in circumstances such as those before me - that there is no additional requirement on an applicant to demonstrate further approval under the rules for the alteration sought beyond that provided in the originating application.”
[42] The same circumstances apply here - the eligibility rule is only relied upon to a lesser extent than the ambit of the original approval. It appears to me that the Commission is empowered to make a decision in relation to an application on terms other than the terms provided for (see s.599 of the Fair Work Act 2009). In the current context, therefore, it seems to me to be fitting only to grant the application to the limited extent of the eligibility rule that is within power. The consequent effect is that rule 5(e) be excised from the BFUEQ’s rules for the purposes of this application.
[43] The residue of the BFUEQ’s eligibility rule that determines coverage in conformity with the RO Act is therefore as follows:
“The membership of the Union shall consist of any person or persons of good character who are employed or are competent to be employed in any calling:
(a) in or in conjunction with the ham and bacon manufacturing industry at a factory of foodstuffs of which beef, veal, mutton, lamb, pork, or bacon is a constituent part and/or
(b) in or in connection with or incidental to the meat preserving industry and/or
(c) the slaughtering of livestock and/or the handling of beef, veal, mutton, lamb, pork, or bacon in such establishments.
Provided that forepersons shall not be eligible for membership of the Union and members are:
(d) only persons employed in Queensland.
Without limitation to any other part of this eligibility rule the Union will consist of such other persons, whether employees in the industry or not, as have been elected officers of the Union, and admitted as members thereof.”
AWU – objection 6
[44] Ordinarily, the AWU argued, it might be expected that the BFUEQ might have avoided by the federal registration process future demarcation disputes by recognising the demarcation agreements entered into at the State level over a lengthy period of time.
[45] Some unions have included introductory words to the following effect when inserting rules into their federally registered rules. An example of this is as follows:
This rule applies subject to any Queensland State demarcation order or a demarcation undertaking or agreement (however described) in relation to the class of employees to which that demarcation undertaking or agreement (however described) applies.
[46] The BFUEQ’s application does not contain words to this effect.
[47] But the AWU having made this point, conceded that its concern did not constitute a bar to the registration of the BFUEQ under the RO Act. The AWU made no express reference to any such orders.
[48] In any event, as the BFUEQ asserted, there are no State demarcation orders applying to the BFUEQ in any event.
[49] The AWU’s concerns, even if relevant, appear to be without foundation.
Wider considerations
[50] The effect of the RO Regulations is that a transitionally recognised association is only required to meet the requirements of s.19(1)(a) - s.19(1)(i) of the RO Act (as set out above), and considerations as to overlapping or competing coverage in eligibility rules do not apply in respect of these provisions.
[51] The uncontested evidence in support of the application was given by Mr Darryl Burgess, who is the general secretary of the BFUEQ.
[52] For the purposes of s.19(1)(a)(i) of the RO Act, the BFUEQ must be, and the materials before demonstrate that it is, a genuine association that is a federally registrable association of employees, and is an association for the purposes of furthering or protecting the interests of its members (s.19(a)(ii) of the RO Act).
[53] The BFUEQ has represented its members’ interests in the Queensland Industrial Relations Commission and has represented its members in proceedings of various kinds in the Fair Work Commission, subsequent to attaining the status as a transitionally registered association. The BFUEQ is also covered by various agreements.
[54] For purposes of s.19(1)(b) of the RO Act, Mr Burgess gave evidence that as an official of the BFUEQ for a significant period of time he was unaware of any employer or association or organisation of employers that exercise any control or influence over the BFUEQ.
[55] For the purposes of s.19(1)(d) of the RO Act, the BFUEQ is an association that has at least 50 members who are employees.
[56] For the further purposes of s.19(1)(e) of the RO Act, Mr Burgess gave evidence that the BFUEQ has operated as a transitionally recognised association since 2006 and has operated its affairs with a focus on compliance with applicable laws, regulations and other administrative requirements. Mr Burgess claimed he was unaware of any reason why the BFUEQ would be unable to conduct its affairs in that way if it was to become an organisation under the RO Act.
[57] This evidence assists in satisfying requirements of s.19(1)(e) of the RO Act.
[58] For the purposes of s.19(1)(f) of the RO Act, the rules of the association make provision as required by this Act be made by the rules of organisations. Further, the rules that are before me are rules that comply with the requirements of the RO Act and otherwise meet the requirements of Regulation 1.13 of Part 3 of Schedule 1 of the RO Act.
[59] No issue arises in this matter in respect of the requirements of s.19(1)(g) of the RO Act. That is, no issue arises that the association has a name which is the same as that of an organisation or a name that is so similar to the name of some other organisation as to be likely to cause confusion.
[60] On the material tendered, s.19(1)(h) of the RO Act is satisfied as an absolute majority of the committee of management of the association passed, under the rules the association, a resolution in favour of registration of the association as an organisation. In the course of these proceedings, it became obvious that the application for registration filed by the BFUEQ did not contain the declaration required by regulation 21(1)(b) of the RO Regulations. The BFUEQ, however, filed a statutory declaration as to the desired effect at the hearing on 25 May 2015, which I accepted as an amendment to its application on the basis of “special circumstances” arising from inadvertent error for the purposes of regulation 179 of the RO Regulations.
[61] Section 19(1)(i) of the RO Act requires registration of the association to further Parliament’s intention in enacting this Act (see s.5 below) and the object set out in s.3 of the Fair Work Act 2009 (“the FW Act”).
5 Parliament's intention in enacting this Act
(1) It is Parliament’s intention in enacting this Act to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.
(2) Parliament considers that those relations will be enhanced and those adverse effects will be reduced, if associations of employers and employees are required to meet the standards set out in this Act in order to gain the rights and privileges accorded to associations under this Act and the Fair Work Act.
(3) The standards set out in this Act:
(a) ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and
(b) encourage members to participate in the affairs of organisations to which they belong; and
(c) encourage the efficient management of organisations and high standards of accountability of organisations to their members; and
(d) provide for the democratic functioning and control of organisations; and
(e) facilitate the registration of a diverse range of employer and employee organisations.
(4) It is also Parliament’s intention in enacting this Act to assist employers and employees to promote and protect their economic and social interests through the formation of employer and employee organisations, by providing for the registration of those associations and according rights and privileges to them once registered.
(5) Parliament recognises and respects the role of employer and employee organisations in facilitating the operation of the workplace relations system.
[62] The object (set out at s.3) of the FW Act is as follows:
3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and
(g) acknowledging the special circumstances of small and medium-sized businesses.
[63] There is nothing in the materials before me that lead me to believe that the BFUEQ is intending to conduct itself and its affairs other than in support of the Act and its intentions.
[64] Nor are there any matters arising in respect of s.19(2), s.19(3), s.19(4) and s.19(5) of the RO Act that bear in any substance upon the discretionary considerations or findings of fact I need to make in respect of this application.
Compliance with the RO Regulations
[65] I have referred earlier to the requirement that the application for registration must comply with regulation 21 and 22 of the RO Regulations. On review of the materials and the application I am of the view that the requirements of regulations 21(1)(a), 21(1)(b), 21(1)(c) and 21(1)(d) of the RO Regulations have all been discharged.
[66] Further, regulation 22 of the RO Regulations requires that after receiving an application for registration, the general manager of the Commission must publish a notice in the Gazette stating an application for registration has been received. I have referred earlier to the positive indication in the application that this requirement was discharged on 5 February 2015.
Conclusion
[67] I am satisfied that each of the criterion for the registration of the BFUEQ under the RO Act and the RO Regulations have been satisfied.
[68] In light of this, I will grant the application, which will come into effect on 29 May 2015.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr J. Payne, for the Applicant
The AWU did not appear
Hearing details:
Brisbane
2015
25 May
Printed by authority of the Commonwealth Government Printer
<Price code C, PR567640>
0