The Real Estate Association of New South Wales; Property Sales Association of Queensland, Union of Employees

[2013] FWC 8246

[2013] FWC 8246

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.44(1) RO Act - Application for approval for submission of amalgamation to ballot

The Real Estate Association of New South Wales; Property Sales Association of Queensland, Union of Employees
(D2013/120)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 22 OCTOBER 2013

Application for proposed amalgamation between The Real Estate Association of New South Wales and Property Sales Association of Queensland, Union of Employees.

[1] On 25 July 2013 I issued an initial decision (2013) FWC 5032 with respect to the above amalgamation application which was lodged on 13 June 2013 and heard by me on 10 July 2013.

[2] In that decision I set out the relevant sections of the Fair Work (Registered Organisations) Act 2009 (the RO Act) and the background of the application. Therefore I will not repeat these here.

[3] The application involves an extension of the Conditions of Eligibility of the two organisations so that the amalgamated organisation to be known as the Australian Property Services Association (APSA) has broader coverage than the two applicants.

[4] In accordance with s.55(1)(b) and (2) of the RO Act I refused to approve the submission of the amalgamation to ballot.

[5] I then ordered that there be a public notification of the refusal and timetable and process for objectors, as set out in the Fair Work Registered Organisation Regulations.

[6] That process has been completed and accordingly the matter was re-listed before me on 16 October 2013.

Objections

[7] One objection was lodged by the Registered Real Estate Salespersons’ Association of South Australia (RRESA of SA) a transitionally registered organisation under the RO Act.

[8] The RRESA of SA was represented by Mr Ralph Clarke at the hearing. Ms K. Presdee of Slater and Gordon continued to represent the applicant organisations.

[9] The substance of the objection was that the amalgamated organisation would impinge on the coverage of the RRESA of SA in the real estate industry in South Australia.

[10] The applicants offered an exclusion to the RRESA of SA to settle their objection.

[11] Clause 4 “Eligibility” of the amalgamated Organisation’s rules would be amended as follows (proposed amendment underlined):

“4. Eligibility

4.1 An unlimited number of the following categories of persons throughout Australia are eligible to become members of the association:

(a) those persons who are employed, usually employed, qualified to be and desirous of being employed, or seeking to be employed:

(1) in or in connection with the property sector

(2) in or in connection with the real estate industry, including but not limited to:

i. real estate agency

ii business and hotel broking

iii. strata and community title management

iv. buyers agency

v. real estate valuation

vi. developers

vii. the provision of any other service that may be covered by the Real Estate Award 2010 as varied from time to time

(3) by stock and station agents, other than clerical and administrative personnel.

(b) persons whether engaged as aforesaid or not who are:

(1) elected officers of the association

(2) appointed officers of the association.

(c) persons engaged as independent contractors who, if they were an employee performing work of the kind which they usually perform as an independent contractor, would be eligible for membership of the association.

4.2 Notwithstanding any other provision of these rules, nothing shall render eligible for membership of this association any person who is eligible for membership of the following organisations:

(a) The Construction, Forestry, Mining and Energy Union

(b) the Registered Real Estate Salespersons’ Association of South Australia

[12] At the hearing, Mr Clarke agreed to the amendment. The RRESA of SA objection was therefore withdrawn.

Submission to Ballot

[13] Sections 57(3) and 61 of the RO Act enable the Commission to permit the existing organisations to alter the scheme for amalgamation, including the proposed rules of the organisation. Affidavits from the responsible officers were filed which confirmed that the alteration had been endorsed by the Committees of Management of the applicants.

[14] Accordingly, I grant permission for the alteration to the scheme sought.

[15] The objection having been settled, I am satisfied that the amalgamation complies with the Fair Work Act 2009, modern awards and enterprise agreements, and is not otherwise contrary to law. Accordingly, pursuant to s.57(1) of the RO Act I must approve the submission of the amalgamation to ballot.

[16] Orders containing the ballot dates and other matters will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

K. Presdee, solicitor for the Real Estate Association of New South Wales and the Property Sales Association of Queensland, Union of Employees.

R. Clarke for the Registered Real Estate Salespersons’ Association of South Australia.

B. Gannon for the Property Sales Association of Queensland, Union of Employees.

Hearing details:

2013

Sydney:

July 10;

October 15.

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<Price code A, PR543571>