The Health Services Association of New South Wales

[2016] FWC 3155

[2016] FWC 3155

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.18(a) RO Act - Application for registration by an association of employers

The Health Services Association of New South Wales
(D2014/69)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 19 MAY 2016

Application for registration by the 'Health Services Association of New South Wales'.

Introduction

[1] On 31 October 2014 an application was lodged in the Fair Work Commission (the Commission) to register The Health Services Association of New South Wales (the Applicant) as an organisation pursuant to s.18(a) of the Fair Work (Registered Organisations) Act 2009 (the RO Act).

[2] The application was signed by Stephen Lowndes, the Applicant’s President and James McGillicuddy, the Applicant’s Executive Director.

[3] At the time of the application, the Applicant had some 18 members who are public health services providers and employers in New South Wales. These include St Vincent’s Public Hospital Darlinghurst (3226 employees) down to Mercy Care Centre, Young (92 employees). The Applicant was already incorporated under the Corporations Act 2001 (Cwth).

[4] The application was notified by publication in the Commonwealth Gazette on 28 November 2014.

Objections

[5] A notice of objection was filed by the Health Services (HSU) on 22 December 2014.

[6] A notice of objection was also filed on that day by the Health Services Union New South Wales, the state registered and Transitionally Recognised Association counterpart of the HSU.

[7] Taken together, these objections are referred to as the “HSU Objections”.

[8] The HSU objections submit that:

● The name of the Applicant is similar to the HSU.

● The HSU is an organisation to which the member of the Applicant could more conveniently belong.

● The HSU could more effectively represent those eligible for membership of the Applicant.

Commission Proceedings

[9] The matter was listed for mention on 19 February 2015. Mr J. McGillicuddy appeared for the Applicant. Mr M. McLeay appeared for the HSU.

[10] On 20 January 2015, Mr McGillicuddy provided the Commission with a written answer to the objection noting:

● The Applicant was established in 1921 and has been known by its current name since 1991.

● It is known as the peak body representing public health service providers and would not be confused with the HSU, as the union representing employees.

● The Health Services Act 1997 (NSW) recognises public health service providers who are corporate entities and employers.

● The Applicant’s members are constitutional corporations and national system employers.

● It is consistent with the RO Act for there to be a federally registered association of employers to represent affiliated health organisations.

[11] The matter was adjourned for the discussions between the applicant and the HSU to take place.

[12] A further hearing took place on 27 March 2015. I was advised that an in principle agreement had been reached between the Applicant and the HSU to settle the HSU’s objection. I also advised the Applicant that the Regulatory Compliance Branch of the Commission had identified a number of aspects of the draft rules of the Applicant which had been filed in which there was not compliance with the provisions of the RO Act. These related to the role and duties of officers, elections and meetings of governing bodies. The detailed report was provided which set out these issues.

[13] The matter was adjourned so that the in principle agreement could be formalised. The applicant also needed to amend the draft rules so that they complied with the RO Act, have them endorsed by its governing body and re-submit them to the Commission.

[14] A memorandum of understanding executed by the Applicant and the HSU was finally provided to the Commission on 19 August 2015.

[15] A telephone hearing took place on 20 August 2015, at which the Agreement was noted.

[16] There remained further issues of non-compliance with the RO Act with the draft rules. These were detailed in a report from the Regulatory Compliance Branch (RCB) dated 9 September 2015 which was provided by me to the Applicant.

[17] Despite requests, no further advice was provided by the Applicant.

[18] In response to a listing of the matter for 8 February 2016, my chambers were advised that Mr McGillicuddy was no longer representing the Applicant.

[19] Stevens and Associates, Lawyers lodged a Notice of Representative Commencing to Act (F53) on behalf of the Applicant on 20 January 2016.

[20] On 8 February 2016 I was advised that the Applicant had not held the meeting to endorse the amended rules, as it had undertaken.

[21] On 27 April 2016, the Commission was finally provided by the Applicant, with advice that the amended rules had been endorsed by an extraordinary meeting of members of members on 4 March 2016.

[22] On 3 May 2016, I was advised by the RCB that the rules as endorsed on 4 March 2016, subject to one minor correction which I deal with below, now comply with the RO Act and can therefore be certified.

Relevant Provisions of the RO Act

[23] Section 18A sets out the requirements for an employer association to be able to be registered in the federal system as follows:

“18A Federally registrable employer associations

(1) An association of employers is federally registrable if:

(a) it is a constitutional corporation; or

(b) some or all of its members are federal system employers.

(3) An association of employers is not federally registrable if it has a member who is not one of the following:

(a) an employer;

(b) a person who was an employer when admitted to membership, but who has not resigned or whose membership has not been terminated;

(c) a person (other than an employee) who carries on business;

(d) an officer of the association.

(4) An association of employers is not federally registrable if:

(a) it is only a body corporate because it is or has been registered under this Act (whether before or after the commencement of this subsection); and

(b) it is not the case that some or all of the association’s members are federal system employers.”

[24] I need to be satisfied that the criteria for registration contained in s.19 have been met and, if so, I must grant the application.

“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.”

[25] Finally, s.25 gives authority to the Commission to approve an amendment to the rules of an applicant organisation to comply with the requirements of the Commission, the Act and/or to settle an objection.

“25 Applicant for registration may change its name or alter its rules

(1) The FWC may, on the application of an association applying to be registered as an organisation, grant leave to the association, on such terms and conditions as the FWC considers appropriate, to change its name or to alter its rules:

(a) to enable it to comply with this Act; or

(b) to remove a ground of objection taken by an objector under the regulations or by the FWC; or

(c) to correct a formal error in its rules (for example, to remove an ambiguity, to correct spelling or grammar, or to correct an incorrect reference to an organisation or person).

Note: Paragraph (a)—in order for an organisation to comply with this Act, its rules must not be contrary to the Fair Work Act (see paragraph 142(1)(a) of this Act).

(2) An association granted leave under subsection (1) may change its name, or alter its rules, even though the application for registration is pending.

(3) Rules of an association as altered in accordance with leave granted under subsection (1) are binding on the members of the association:

(a) in spite of anything in the other rules of the association; and

(b) subject to any further alterations lawfully made.”

Agreement with HSU

[26] A copy of the Agreement between the Applicant and the HSU to settle the HSU’s objection is attached to this decision (Attachment 1). It can be seen that the Applicant agreed to refer to itself as “The Health Services Association of New South Wales” only and to specify that it represents only employers in all communications.

Compliance with the RO Act

[27] The Applicant has lodged with the Commission a consolidated copy of the proposed rules incorporating the amendments to settle the objections and to comply with the RO Act as required by the Regulatory and Compliance Branch of the Commission. Pursuant to s.25 of the RO Act. I grant leave to the Applicant to alter its rules in the manner submitted to the Commission.

[28] Pursuant to s.25(1)(c) of the RO Act I correct an obvious clerical omission in sub-rule 12.1(a) by adding the words “another Board” after the words “the office-holder is a member of”.

[29] I am satisfied that the Applicant is a federally registrable association of employers within s.18A(1) of the RO Act which is quoted above. The evidence was that all of its members are federal system employers.

[30] I am satisfied also that the Applicant has met the criteria for registration provided for in s.19 including:

● It is a genuine and independent association of employers as required by sub sections (1)(a) and (b).

● Its members have the number of employees required by subsection (1)(c).

● The rules, as amended, comply with the requirements of the RO Act.

● The Applicant’s name does not infringe on the provisions of sub-section (1)(g).

● The Applicant’s members have endorsed the registration of the Applicant in accordance with its rules as required by sub-section (1)(h).

● The objections having been withdrawn, there is no organisation to which the members of the Applicant could more conveniently belong and which would more effectively represent them as specified by sub-section (1)(j).

Conclusion

[31] In summary, I am satisfied that the application complies with s.18, s.18A and s.19 of the RO Act.

[32] I therefore grant the application for registration of The Health Services Association of New South Wales as an association of employers.

[33] The operative date of this decision and the date of registration of the Applicant shall be 1 June 2016.

DEPUTY PRESIDENT

Appearances:

J. McGillicuddy and S. Lowndes for the Health Services Association NSW;

M. McLeay for the Health Services Union.

Hearing details:

2015

Sydney:

February 19;

March 27;

August 20.

2016

February 8 (Telephone conference).

Final written submissions:

2016

April 27 (Applicant);

May 3 (RCB).

Attachment 1

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