The Local Government Engineers' Association of New South Wales

[2016] FWC 8775

[2016] FWC 8775

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 Local Government Engineers' Association of New South Wales
(D2016/66)

VICE PRESIDENT HATCHER SYDNEY, 15 DECEMBER 2016

Application/Notification for an extension by a transitionally recognised association by The Local Government Engineers' Association of New South Wales.

Introduction

[1] On 25 November 2016 the Local Government Engineers’ Association of New South Wales (LGEA), 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 LGEA’s behalf by Mr Bede Spannagle, its President. 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 an absence of an extension being granted, the transitional recognition of the LGEA 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. 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 LGEA 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 LGEA is registered as an organisation of employees under the Industrial Relations Act 1996 (NSW). 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 Association of Professional Engineers, Scientists and Managers, Australia (APESMA) as the federal counterpart of the LGEA (see reg. 8A and item 141 of Schedule 1A).

[4] Accordingly the LGEA’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, APESMA.

[5] The LGEA’s application is accompanied by a statutory declaration from Mr Bede Spannagle which sets out the grounds for the making of the application. It includes the historical and financial arrangements between LGEA and APESMA, as well as an outline of the measures that the LGEA has implemented towards rationalising its affairs with those of APESMA, as its federal counterpart, including the purpose of taking those measures. LGEA has historically had ties with APESMA, amalgamating in 1991 which resulted in the LGEA of the NSW Branch being established, and all professional engineers employed by local government in NSW who were already members of APESMA were transferred to the LGEA NSW Branch.

Evidence

[6] In support of the LGEA’s application, Mr Spannagle made a statutory declaration on 25 November 2016 setting out the steps the LGEA has taken to rationalise its internal affairs with those of the APESMA. The substance of the declaration may be summarised as follows:

• Structure: The LGEA largely correlates with one of the divisions of the APESMA representing each profession eligible for membership in accordance with the APESMA structure established in 2013, the Local Government Engineers’ Association of NSW Division (Division). There are some minor differences in the structure of offices in the LGEA and the Division, although they are largely comprised of the same offices held by the same persons. The LGEA has commenced to take steps to alter its rules so that there will be a complete and seamless correlation between the offices of the LGEA and the Division in terms of the offices themselves, the officeholder and their terms of office.



• Administration: Mr Spannagle has required over time that the internal administration of the LGEA and the Division be regularised so that systems applied appropriately to the requirements of the rules of both organisations. Committee meetings and annual general meetings are held concurrently, notices are issued jointly, and service arrangements have been entered into which cater jointly to the needs of the LGEA and the Division.



• Engagement of staff: The agreement entered into by the APESMA and the LGEA approved by the Australian Industrial Relations Commission in 1994 pursuant to s.202 of the Industrial Relations Act 1988 (Cth) (Agreement) sets out that recruitment of staff will be by mutual agreement between the LGEA and the APESMA and permitted the joint employment engagement of industrial staff. This has now progressed to the point that the LGEA no longer employs any staff who are not jointly employed by the APESMA.



• Rules: In the 2013 restructure of the APESMA, the rules of the LGEA were used as a guide to construct the rules of the Division, with the effect that the internal affairs of the LGEA reflected in its rules are on a practical level rationalised and consistent with the rules of the APESMA applying to the Division.



• Elections: Elections currently occur separately for the Division and the LGEA but Mr Spannagle has taken advice about and intends to explore amending the rules of the LGEA to provide for a single election as permitted by s.239 of the Industrial Relations Act 1996 (NSW).



• Financially: The LGEA retains 75% of all subscriptions from members consistent with the terms of the Agreement so that it can function effectively. The APESMA indemnifies the LGEA for all costs reasonably incurred in pursuing the industrial interests of its members (subject to approval of the National Executive) and provides a subsidy of $25,000 per annum to the Division.



• Purpose: The overall purpose of taking these measures has been to rationalise the affairs of the LGEA and the Division so as to reduce administrative costs to members, reduce the replication of services to its members, limit the confusion that arises in relation to the two related entities providing similar services to members who are joint members, and to enhance the efficiency and effectiveness of representation of joint members.



• Membership: The LGEA has requested that the APESMA vary its eligibility rule so that it can represent those members of the LGEA who currently cannot be industrially represented by the APESMA.

Conclusion

[7] I am satisfied, on the basis of the material contained in Mr Spannagle’s declaration, that the LGEA has made progress towards rationalising its internal affairs with those of its federal counterpart, the APESMA. 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 LGEA’s transitional recognition until 1 January 2018.

[8] 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 Local Government Engineers' Association of New South Wales is extended until 1 January 2018.

VICE PRESIDENT

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