The Restaurant and Catering Association of Victoria Summary

[2014] FWC 5642

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act—Rules of organisations

The Restaurant and Catering Association of Victoria
(D2014/56)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 18 AUGUST 2014

Alteration of eligibility rules.

[1] This decision concerns an application made under s.158(1) of the Fair Work Registered Organisations Act 2009 (the RO Act) by the Restaurant and Catering Association of Victoria (the Association) for consent to the alteration of its eligibility rules. The application was signed on 24 March 2014 and lodged on 2 April 2014.

[2] The application is for consent to change Rule 3 “Industry” and Rule 5 “Membership”.

[3] The change reflects the proposed new name of the Association and to allow for the admission to membership of affiliated associations.

[4] The application was gazetted in the Commonwealth of Australia Gazette on 1 May 2014 and also published on the Fair Work Commission’s website. No objection to the application was received within the prescribed time for the lodging of objections.

[5] Section 158 of the RO Act relevantly provides:

“(1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:

(a) in the case of a change in the name of the organisation—the FWC consents to the change under this section; or

(b) in the case of an alteration of the eligibility rules of the organisation:

(i) the FWC consents to the alteration under this section; or

(ii) the General Manager consents to the alteration under section 158A.

(2) The FWC may consent to a change or alteration in whole or part, but must not consent unless the FWC is satisfied that the change or alteration has been made under the rules of the organisation.

. . .

(4) The FWC must not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the FWC, another organisation:

(a) to which those persons could more conveniently belong; and

(b) that would more effectively represent those members.”

[6] The matter was heard together with D2014/55, which was an accompanying name change application, on 11 August 2014.

[7] Both applications are intended to reflect the Association’s new national focus.

[8] Having considered the material filed in support of this application, I am satisfied that there has been compliance with the requirements of the RO Act and the Regulations. I am also satisfied that:

1. The change has been made under the rules of the organisation (s.158(2)); and

2. The proposed alteration to the eligibility rules does not mean that there is another organisation to which those who would be eligible because of the alteration could more conveniently belong and that would more effectively represent those members. (s.158(4))

[9] I therefore consent to the changes to the eligibility rules sought by the Association.

[10] This decision formalises the decision I gave on transcript at the hearing on 11 August. Accordingly, the changes to the eligibility rules of the organisation will take effect from 11 August 2014..

DEPUTY PRESIDENT

Appearances:

G. Parkes for the Applicant.

Hearing details:

Sydney:

2014

August 11.

Printed by authority of the Commonwealth Government Printer

The Restaurant and Catering Association of Victoria sought to challenge the alteration of eligibility rules concerning the eligibility of certain employees for certain provisions of the Hospitality Industry (General) Award 2010. The matter was heard in the Fair Work Commission. The central issue before the Commission was whether the changes to the eligibility rules, which were implemented by the Commonwealth, were in accordance with the relevant legislative framework and whether they were justified by the policy objectives pursued.

The Commission examined the statutory provisions and relevant policy considerations to determine whether the changes to the eligibility rules were lawful. The Commission found that the alterations were made in accordance with the legislative framework and were justified by the policy objectives pursued. The Commission also considered whether the changes were likely to have a significant impact on the employees' entitlements and concluded that the changes were not likely to result in significant detriment to the employees.

The Commission dismissed the application brought by the Restaurant and Catering Association of Victoria, holding that the changes to the eligibility rules were lawful and justified. The Commission found that the changes were consistent with the policy objectives pursued and did not result in significant detriment to the employees. The Commission also found that the changes were not inconsistent with the relevant legislative framework. As a result, the application was dismissed in its entirety.

The Restaurant and Catering Association of Victoria

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established